This is old news now since it happened over a week ago, however, the continued discussion of this settlement is needed and hopefully welcomed.
I have been silent on this settlement on this site due to a few reasons (full disclosure):
- I was at the Open Content Alliance’s (OCA) yearly meeting in the Presidio of San Francisco when the settlement was announced. As such, I was privy to the private discussions between members of the OCA and others. I didn’t want to say anything I learned there before they had a chance to say it themselves.
- I work with a very high level administrator at the University of Michigan Libraries. The UofM Libraries are one of the Google Book “Fully Participating Libraries” and as such have a special relationship with Google. This relationship may cause members of the UofM libraries opinions’ of this settlement to be influenced in one direction or another.
- There have been many people saying contradictory things about this settlement; everyone couldn’t be right in their analysis. Just like sunlight is the best disinfectant, time is the best producer of truth.
- The settlement is one-hundred and forty-one (141!) pages long. This doesn’t include the fifteen (15!) attachments to the settlement. This is part of why so many were making false claims, they just didn’t get to the part that explained what would happen in the situation they were talking about.
- Plus, I was going to be giving a presentation on the Google Library Project for my class on Intellectual Property and Information Law (PubPol 688/SI 519). I decided to wait until after the presentation to post my views. I could have posted a draft of my presentation before to see what sorts of comments I would receive but to be honest, I wasn’t thinking that far in the future. Graduate School does that to me.
Here is the presentation I gave yesterday (2008-11-7):
(.odp, .pdf, .ppt)
Unfortunately, for you, my slides don’t contain all of the information I conveyed (because that presentation style sucks). Fortunately, for the students in the class, my slides didn’t contain all of the information I conveyed.
You will notice that my presentation takes a very hard look at the Settlement; I’m not one to see something like this and think it is the best outcome we could have had. Yes, there are some really great things to the settlement but that doesn’t mean I can’t critique the parts that are bad.
A quick example of one of the really great things the Settlement provides: All “Fully Participating Libraries,” libraries that have signed scanning agreements with Google and have had a sizable percentage of their libraries scanned, will have free access to the entire corpus of books Google has scanned. Not just the books that were scanned at that specific library, but the books scanned at all libraries. So, if you are a student at the University of Michigan, University of California, Stanford, or any of the libraries listed in Settlement Attachment G “Approved Libraries” you can be happy about that.
If, however, you are a student at any other university or college you won’t be as happy. Your school, unless it pays the subscription fee (not yet disclosed), will only be able to have a limited number of “terminals” that can be connected to the Google Library; a more correct term would be the Google Bookstore. Even the UofM’s own Paul Courant said this settlement will create the “Universal Bookstore;” he didn’t say “Universal Library.” But I digress….
These other libraries will have a set number of virtual terminals based on the size of their school (1 per 10,000 students or 1 per 4,000 students, depending on the type of school). These are virtual terminals because the access is restricted to a physical computer. The number of computers which have access to the service is a set number, but the computers with access could vary based on demand to any computer within the library.
Issues that I didn’t go into depth in my class presentation that are none-the-less important include:
- The effective monopoly on the materials that Google now has. Sure, others could join the game, at the $145 million price tag, but since this was a settlement not a legal decision there isn’t a lot of incentive for groups such as the OCA to go into talks with the AAP and Authors Guild.
- To continue my digression from above: the fact that this is going to be a “Universal Bookstore” not a “Universal Library” is slightly saddening.
- I don’t have a legal reason to feel sad; the copyright holders have every right to charge for these materials. But I feel like everyone other than Google, the authors, and the publishers are being scammed. Again, not for a legal reason, but for a moral reason:
- Libraries, through public funding, have been keeping these books safe for the last 70 years. These books, up until the day of the settlement, have had worthless to the publishers and authors. These books are out-of-print and thus all purchases of them have been paid to individuals base don the first-sale doctrine. Now, Google, through its Universal Bookstore, will sell you these books and pay the authors for them. Google will not pay the Libraries who were the ones who made this whole endeavor possible. Sure, the libraries agreed to only get the digital copies back as part of their agreements with Google, but that was before anyone had thought about this possibility. Should those contracts be renegotiated?
- What Happened to Fair Use?
- This could possibly be one of my biggest critiques of this settlement: the pure fact that there is a settlement. This was a copyright infringement case brought against Google by two associations, the Associate of American Publishers and the Authors Guild. Google had a fairly good Fair Use argument and may have indeed won the case based on it. This would have been a GREAT THING (most likely). Others would have the same rights as Google as it pertains to the scanning and displaying of books.
- Now, however, Google is a “special citizen” in this arena; they have “rights” others do not. Is that fair? No. Is that was is best for our future, and the future of libraries? No.
Hopefully I don’t sound too negative towards this settlement. Ok, lets be honest, I am pretty darn negative towards it. But hey, that is my job, at least what I see my job being. There are plenty of people out there being paid a large sum of money to tell you how good this settlement is. The ones who are out there telling you how bad it is are most likely not being paid to do so; I’m not.
If you have read this far and are still interested in this topic, you should check out what the rest of the world has been saying about this settlement. A good place to start would be TechDirt’s opinion on the matter. And, the Open Access News blog has posts that summarize others’ opinions in four parts (1, 2, 3, and 4).
Full Disclosure (thanks to Jon for reminding me): I am employed by Creative Commons and through that work have been involved with the OpenLibrary Project. Also, I am employed by Paul Courant, the Dean of Libraries for the University of Michigan. As thus, there may been some conflicting influences on my opinions. I am in a special dual position.