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Saturday, 14th November 2009
Press Review+: Google Book Search Revised Settlement (2.0) Released; What About Libraries?
We're going to on the lookout for news, commentary from experts, and viewpoints from various organizations and companies involved in the GBS story. We're posting selected snippets with links to the full text. We also know that in the document filed with the court, there is one mention of libraries, public libraries to be specific.
From Google and Others Involved:
+ Modifications to the Google Books Settlement (via Google Public Policy Blog, Dan Clancy)
The changes we've made in our amended agreement address many of the concerns we've heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement: opening access to millions of books while providing rightsholders with ways to sell and control their work online.
The blog post also links to a settlement modifications overview (3 pages) and a Revised Settlement FAQ (2 pages).
Are libraries mentioned in these documents? Yes. As you'll read not much is different in terms of access except that the amended agreement allows the Registry to increase the amount of terminals in a public library.
On Page 2 of the Overview it States:
The amended settlement does not change the primary access models outlined in the original agreement, including enabling readers to preview and purchase books, selling institutional subscriptions to the whole database, and giving libraries free access at designated terminals. Under the revised agreement, possible additional access models to which Google and the Registry might agree in the future have been reduced and are now limited to: print-on-demand*, file download, and consumer subscription. The amended agreement also enables the Registry to increase the number of terminals at a public library building...
* The Amended Settlement limits POD, if approved, to Books that are not Commercially Available.
There is no mention of the words library or libraries in the FAQ.
There is a third document, a Supplemental Notice (an actual court filing; 6 pages; PDF), listing all of the changes to the settlement. #17 talks about the terminals in public libraries that we mentioned a moment ago.
Here are a few more changes (via the supplemental notice) that might be of special interest:
+ #16:
The Amended Settlement provides that the Registry will facilitate Rightsholders’ wishes to allow their works to be made available through alternative licenses for Consumer Purchase, including through a Creative Commons license...The Amended Settlement also clarifies that Rightsholders are free to set the Consumer Purchase price of their Books at zero.
+ #18:
The Amended Settlement no longer includes children’s book illustrations in the definition of Inserts. (ASA Section 1.75) The Amended Settlement, however, does not change the inclusion of pictorial works, such as graphic novels and children’s picture books, in the definition of Books and provides that the Amended Settlement only authorizes Google to display the pictorial images in such Books if a U.S. copyright owner of the pictorial image also is a Rightsholder of the Book. The Amended Settlement also clarifies that comic books are considered to be Periodicals and that Periodicals (as well as compilations of Periodicals) are not included in the definition of “Books,” and thus are not in the Amended Settlement.
Finally, if you would like to read the complete Amended Settlement Agreement, here's the 173 page PDF file.
+ Amended Google/AAP Settlement (via Coyle's InFormation, Karen Coyle)
An excellent overview of Settlement 2.0 from librarian Karen Coyle. She brings up several library related issues including the removal of an OCLC "exception"; download formats and course packs; and much more. This is must read material.
+ Is the Google Books Settlement Worth the Wait?
The Open Book Alliance--SLA and The New York Library Association--are two of its members has posted their views after a preliminary reading of the revised settlement. Here are a few snippets.
Open Book Alliance co-chair Peter Brantley said, “Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand; fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners. None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest.
[Snip]
Most critically, the settlement proposal must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books. It is clear that Google has failed to meet these requirements.
UPDATE: 11/17 The Monopoly Continues (Source: Open Book Alliance)
UPDATE: 11/17 Proposed Changes Fail to Address Fundamental Flaws, Says Open Book Alliance Co-Chair (via Open Book Alliance)
+ Revised Google Book Settlement Filed & Live Blogging The Press Call (via Search Engine Land, Danny Sullivan)
Danny took the time to live blog the conference call that took place early Saturday morning, east coast time. On the call were:
+ Richard Sarnoff, chairman of the American Association of Publishers
+ Paul Aiken, executive director of the Authors Guild
+ Daniel Clancy, engineering director for Google Books
Here's how they responded to the Open Book Alliance comments that are posted and linked to above this item.
So the response to that? Clancy stepped up, saying there were lots of discussions on how to change things. Adjustments were made to address class member concerns (the people involved in the lawsuit, rather the the Open Book Alliance, which is not a party to the suit). “I understand Amazon, Microsoft and the Internet Archive don’t want to increase access to these books,” he said, or very close to that. That was a zinger, stressing that the Open Book Alliance just happens to be backed by major Google competitors. Not that Google minds. Clancy said they welcome the competition and feel the settlement addresses concerns.
Aiken: “These are substantial changes.” He added that yes, the core settlement was largely protected but that it had to be, as it was in general seen correct.
Sarnoff: Said he assumed the OBA hadn’t read the settlement. That was probably true enough. The press conference itself appears to have started about 1/2 hour after the settlement was out. Some reporters on the call mentioned they hadn’t even read it.
+ The Authors Guild Has a Review of the MaJor Changes on their Site
+ Google Book Search Settlement Revised: No Reader Privacy Added (From the Electronic Frontier Foundation)
Unfortunately, the parties did not add any reader privacy protections. The only nominal change was that they formally confirmed a position they had long taken privately that information will not be freely shared between Google and the Registry. Our partners at the ACLU of Northern California have a blog post describing the changes we, and the authors we represent, have demanded and continuing the call for readers everywhere to let Google CEO Eric Schmidt know that reader privacy should not be left behind as books move into the digital age.
+ Amended Google Book Settlement: Doesn't Deal with Privacy Problems (ACLU of Northern California)
One of our core privacy concerns with the Settlement has been that reading records are not properly protected from disclosure to the government and third parties. Readers should be able to use Google Book Search without worrying that the government or a third party is reading over their shoulder. No Settlement should be approved that allows reading records to be disclosed without a properly-issued warrant from law enforcement and court orders from third parties.
The Amended Settlement does not resolve this concern, with its only new privacy provision being the following:
"The revised agreement includes language that specifies that Google will not share any private information with the Registry without valid legal process."
Much More After a Click
Legal Analysis
Professor James Grimmelmann, from the New York Law School, has been following and analyzing the GBS case since the beginning in 2005. We think his analysis is though provoking and fair. On his Laboratorium site, he's posted several documents and along with a "instant analysis" of the revised settlement.
Here's a brief portion (read the whole entry):
Settlement 1.0 allowed Google to use and sell them on an opt-out basis, and Settlement 2.0 does the same. That gave Google exclusive access to a market segment that no one else can enter, and thus raised antitrust concerns; the DOJ hit this barriers-to-entry point hard in its Statement of Interest.
Settlement 2.0 has a very interesting response. The Unclaimed Works Fiduciary (or “UWF”) is given extensive powers to set terms on their behalf. Most of this, while good for protecting the interests of orphan owners, is irrelevant to the antitrust issue. It doesn’t matter whether the UWF can object to the pricing bins if no one besides Google is able to sell these books at any price. But there’s one, very important, very enigmatic exception, spelled out in section 6.2(b)(i):
General. The Registry will be organized on a basis that allows the Registry, among other things, to (i) represent the interests of Rightsholders in connection with this Amended Settlement Agreement, (ii) respond in a timely manner to requests by Google, Fully Participating Libraries and Cooperating Libraries, and (iii) to the extent permitted by law, license Rightsholders’ U.S. copyrights to third parties (in the case of unclaimed Books and Inserts, the Unclaimed Works Fiduciary may license to third parties the Copyright Interests of Rightsholders of unclaimed Books and Inserts to the extent permitted by law).
Grimmelmann concludes:
I’m sure there will be much more to say about the amended settlement in the days, weeks, and months to come. My instant reaction is that it makes a number of meaningful, if modest, improvements, but leaves unaddressed the central issue that led me to worry about the settlement in the first place.
UPDATE: Professor Grimmelmann has posted a proposed schedule of legal events beginning on December 14, 2009.
The Press
+ Terms of Digital Book Deal With Google Revised (via NY Times; Brad Stone and Miguel Helft)
The revisions to the settlement primarily address the handling of so-called orphan works, the millions of books whose rights holders are unknown or cannot be found. The changes call for the appointment of an independent fiduciary, or trustee, who will be solely responsible for decisions regarding orphan works. The trustee, with Congressional approval, can grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate. If the money goes unclaimed for 10 years, according to the revised settlement, it will go to philanthropy and to an effort to locate rights holders.
The changes also restrict the Google catalog to books published in the United States, Britain, Australia or Canada.
[Snip]
The revised settlement could make it easier for other companies to compete with Google in offering their own digitized versions of older library books because it drops a provision that was widely interpreted as ensuring that no other company could get a better deal with authors and publishers than the one Google had struck.
+ Google Books settlement sets geographic, business limits (via cnet News, Elinor Mills)
The revised settlement limits Google's future business models from the works to individual subscriptions, print-on-demand, and digital downloads. The company will need to get approval from the Registry's board and provide notice to all claiming copyright holders before implementing any of the business models.
[Snip]
The revised settlement makes it clear that Google will not display any content by default from works that are for sale as new internationally, which are considered commercially available. In addition, it includes language that specifies that Google will not share any private information with the Registry without valid legal process.
+ Revised Google Settlement Offers Minor Changes on Antitrust Issue, No Response on Library Pricing (Library Journal, Norman Oder)
"Ninety-five percent of foreign languages works are out" of the agreement, Authors Guild executive director Paul Aiken said, according to Publishers Lunch. That means "the lion's share of the potential unclaimed works are now out of the settlement."
[Snip]
University of Michigan Library dean Paul Courant, a settlement supporter, had recently expressed support for "a revised settlement (as suggested by the U.S. Department of Justice) that provided competitors with the ability to use the orphan works on the same terms as Google, or legislation with similar consequence."
That didn't happen. "The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation," Grimmelmann commented. "They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for."
+ Google Settlement Filed (via Publisher's Weekly)
The amended agreement makes some changes to the access models to the database of scanned works. While keeping the primary access models the same, future access models have been limited to print-on-demand, file download and subscription.
Google makes concessions on digital book deal (via AP; Michael Liedtke)
Among other things, the modified agreement provides more flexibility to offer discounts on electronics books and promises to make it easier for others to resell access to a digital index of books covered in the settlement.
Copyright holders also would have be given more explicit permission to sell digital book copies if another version is being sold anywhere else in the world.
+ Google, Authors, Publishers Offer Revised Book Pact (via WSJ, by Jessica E. Vascellaro, Scott Morrison, and Jeffrey Trachtenberg)
Whether the changes will prevent the U.S. Justice Department from taking further steps to oppose it – and how the agreement will be viewed by U.S. District Court judge Denny Chin, who is responsible for approving it -- remains unclear. Judge Chin is now expected to set a deadline for groups to object to the modifications and a date for a fairness hearing.
People familiar with the matter say Justice Department representatives and the parties expect to continue discussions about some of the issues not addressed in the revised settlement. The agency is expected to file reactions to the modifications around the end of this year or early 2010, based on the timetable established by the court.
+ Google, Authors try to answer book deal concerns (via Reuters, Diane Bartz)
"We've had numerous discussions and quite a lot of dialogue with the Justice Department and feel we've addressed their key concerns," said Richard Sarnoff, president of Bertelsmann Digital Media.
The agreement is designed to settle a 2005 class action lawsuit filed against Google by authors and publishers who had accused the search engine giant of copyright infringement for scanning libraries full of books.
+ Google narrows scope of book-scanning project (via The Telegraph, UK)
It is proposed that unclaimed proceeds from orphan works be used to try to locate absent rights holders and be held for at least 10 years before being distributed to literacy-based charities in the US, Canada, the UK and Australia.
Google submits revised digital book settlement (AFP)
The revised settlement narrows the definition of books covered under the settlement to those registered with the US Copyright Office by January 5 or published in Australia, Britain, Canada or the United States.
It also sets up an independent body, or fiduciary, which will be responsible for the interests of the rightsholders "orphan works."
+ Google, Content Groups Sign New Google Books Deal (via PC Magazine, Mark Hachman
Works covered under the Books Rights Registry will generally fall into one of three categories, Sarnoff said. Those categories include out-of-print works, unclaimed out-of-print works, and truly "orphaned" works, whos authorship it not even known.
"Data analysis shows that the actual number of orphans is small," Dan Clancy, Google Books' engineering director said during the call.
+ Google, Authors Limit Reach of Online Book Settlement (via Bloomberg)
“We’re holding to our core principles: lots of access to out-of-print books for readers, students and scholars; compensation and control for authors and publishers,” Paul Aiken, executive director of the Authors Guild, said in a note posted on the group’s Web site.
+ Google, Plaintiffs Submit Revised Book Search Settlement (IDG News Service, Elizabeth Heichler)
"By performing surgical nip and tuck, Google, the AAP, and the AG are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution; usurp Congress's role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process," Open Book Alliance co-chair Peter Brantley said in the statement
+ Google backtracks on putting world’s books online (via The Times of London)
The Publishers Association [UK], whose members include Macmillan and Hachette, welcomed the changes. Simon Juden, chief executive of the PA, said: “I’m confident that the revisions we were able to negotiate on condition of our support are beneficial for all UK publishers who choose to remain in the settlement. The alternative, which would have been to withhold our support and have UK works excluded from the scope of the settlement, would have deprived UK rightsholders of control over how their works are exploited.”
See Also: Google Book Settlement: PA negotiates a better deal for UK publishers (via Publishers Association)
See Also: The Amended Settlement Agreement: what’s new? (via Publishers Association) (2 pages; PDF)
+ Google relents with revised digital books settlement (via Washington Post
"The book settlement is a perfect example of where there is clearly potential good for the public in this but there is also potential for them to have market power to dominate a particular activity on the Web." -- Mark Cooper of the Consumer Federation of America.
UPDATE: 11/16: Assessing Competition Issues in the Amended Google Book Search Settlement (via SSRN; by Randal Picker, U of Chicago Law School; 17 pages-PDF)
UPDATE: 11/16: Google’s Mission: To Digitize the World’s Books and Make Them Universally Monetizable by Google (via AllThingsD)
UPDATE 11/16: Amended Google Books settlement does little to address privacy risks (via Center for Democracy and Technology
UPDATE 11/16: CC and the Google Book Settlement (via Creative Commons Blog, Mike Linksvayer)
The revised Google Books settlement submitted for Court approval late on Friday still does very little to protect reader privacy. When the settlement was withdrawn for revisions last month, CDT and other advocates proposed that Google use the opportunity to more fully address the privacy risks we had identified in the original settlement—and effectively take privacy concerns off the table. While the amended settlement does include one positive revision on the privacy front, it appears Google for the most part did not take our advice. Reader privacy remains very much on the table.
+ Update: 11/16 New Google Book Pact Unlikely to End Flap (via WSJ)
The revised pact submitted late Friday would allow Google to distribute millions of digital books online, but would cut the number of works covered by the settlement by at least half by removing millions of foreign works.
Yet the issue of whether it is fair for the settlement to let Google distribute books whose legal rights owners haven't been identified—known as orphan works—is still drawing criticism.
People familiar with the matter say the Justice Department remains concerned that the fact the settlement gives Google immunity from lawsuits related to orphan works may be anticompetitive. The department is expected to file its reaction to the modified agreement by early next year.
A spokeswoman for the Justice Department said the department is reviewing the revised agreement and its investigation into the settlement is "ongoing."
Update: 11/16 Two cheers for Google Books (via CNET)
by Larry Downes, a nonresident fellow at the Stanford Law School Center for Internet & Society.
The real problem, which no one has the guts to face directly, is the sad state of copyright law. Copyright grants authors and their publisher the exclusive right to make copies of their work in order to encourage the growth of intellectual life, from novels to research papers to songs to cookbooks.
Update: 11/17 Berkeley's Samuelson Still Not Satisfied with Google Books Settlement, Will Urge Judge Not to Approve (via Bay Newser)
Comments made by Samuelson at a Commonwealth Club event with a response by Dan Clancy from Google.
Update: 11/17 The Google-Books Settlement: A Lawsuit Ripe for . . . Congress? (via WSJ)
Update: 11/17: Google Backs Out Of NewsHour Debate With Open Book Alliance, And I Don’t Blame Them (via TechCrunch)
Update: 11/17 GBS 2.0: The New Google Books (Proposed) Settlement (via Columbia University Libraries, Copyright Advisory Service)
GBS 2.0 is a double whammy for libraries. First, the ISD’s scope is slashed. No longer “worldwide,” the settlement is now only about books registered with the U.S. Copyright Office (which will be dominantly U.S. books), and books originating from the United Kingdom, Canada, and Australia. Gone are all other books from Europe, Asia, Africa, South America, and other regions. Because the settlement is now tightly limited, so will be the ISD. The big and (probably) expensive database is no longer so exciting. Many of the books under GSB 2.0 are likely already available to many libraries.
The second whammy is legal. Because the settlement does not cover all books, liabilities surrounding some large portion of the books already shipped by libraries and scanned by Google are not released. Copyright owners from France, Argentina, New Zealand, and China retain the right to commence yet another lawsuit against Google, conceivably drawing libraries into the melee. Why the libraries? Rightsholders could claim that libraries are “contributory infringers” by making the books available. Moreover, many libraries and Hathi Trust, continue to hold book scans received from Google that are now outside the settlement.
Update: 11/17 New Google Book Settlement Aims Only to Placate Governments (via Huffington Post)
A new opinion piece from UC Berkeley Law Professor, Pamela Samuelson.
What stands out after my initial review of GBS 2.0 is that changes were overwhelmingly made to placate the governments of France and Germany, as well as the U.S. Department of Justice (DOJ).
Google is apparently hoping that if it can get these governments off its back, GBS 2.0 will be approved. Hundreds of authors, publishers and other interested parties raised dozens of objections to GBS 1.0, but their concerns were almost completely ignored. GBS 2.0, for example, does not address issues raised by academic authors about the risks of price gouging, lack of user privacy protections and restrictions on various uses that can be made of GBS books, even though most of the books in the GBS corpus are academic-authored books.
Update: 11/17: Google Books Settlement 2.0: Evaluating Access (via EFF, Fred Von Lohmann)
See Also: Google Books Settlement 2.0: Evaluating the Pros and Cons (EFF, Fred Von Lohmann)
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