Deep impact?

That a settlement between publishers, authors and Google over the latter’s Book Search project was in the works was not exactly a well-kept secret over the past few weeks.  Nevertheless, the announcement of the complex agreement has set many people buzzing, even before its provisions were fully digested.  There is a collection of comments to be found here, on Open Access News, and Siva Vaidhyanathan gives his initial view here.  As I read over the agreement, I am not sure its impact will be as deep, nor as overwhelmingly positive, as many of the commentators have suggested.  There is a nicely nuanced reaction to the agreement here, from Jack Balkin of Yale Law School.

First, it is important to realize that this is a proposed agreement to settle a pending law suit. It must be approved by the court and may change in its details during that process. The plaintiff classes in this class action suit are very large, so the process of notification will be complex and it is likely that class members will object and want to discuss changes in the agreement. This is not the final word.

I also want to note up front that this settlement would not resolve the fair use argument that is at the heart of the lawsuit; the parties have been very clear that they still have a significant disagreement over whether Google’s activities to date infringe copyright or are authorized as fair use. A decision on that issue would have provided libraries with more guidance as we proceed (or not!) with digitization projects, but both sides in the case, I suspect, wanted to avoid getting to that point. The likely result, unfortunately, is that the next time someone considers pushing the envelope on fair use, there will be even more pressure to just pay the costs of licensing up front and not go down the fair use path at all.

Under this agreement, it seems likely that the availability of in-copyright but out-of-print books would improve in the Google Book Search. Google would be able to show both the “snippet view” for such works that is already available and a “preview” view that would display up to 20% of a work, although no more than 5 adjacent pages and not the last pages of a work of fiction. For out-of-print works this would be the default availability, with the rightsholders able to opt out. For in-print books, the rightsholders would have to opt-in. So while it seems likely that, overall, there will be increased access in the Google Book Search product, some in-print works will also likely disappear, even from the snippet view, as rightsholders elect not to opt in.

The participating libraries are in an interesting “in-between” position here. They have no voice in the settlement agreement, and it appears that, for some of them, the options for using the digital scans of books that they receive from Google will be reduced. That depends on how their original agreements were worded, and that wording seems to have varied among the partner libraries. Under this proposed settlement, the libraries that provide books for scanning can receive digital files for any title they hold in their collections, even if they did not provide the copy of that title that was actually scanned. But there are strict limits on how those files can be used. They cannot be made available for reading even on campus, much less linked into a catalog. They cannot be used for interlibrary loan, e-reserves or in a course management system. They are essentially preservation copies, although there is a provision to allow research based on “text-mining.”

All libraries, of course, will be able to purchase institutional subscriptions which will give them access to the full text of many in-copyright works which publishers decide either not to opt out of this use (for out-of-print books) or which are opted in (for in-print works). We do not know much about the pricing structure yet, but, given the rather small amount of money changing hands at settlement, I think that the publishers are counting on making significant profit here. It will be especially interesting to see if some of the partner libraries choose to subscribe to this more robust version of the database to get the level of access that is denied to them with the scanned files of their own works.

Consumers will also be able to purchase digital copies of individual titles; the pricing structure could allow prices anywhere from $2 to $30 per title, but that structure will undoubtedly undergo further revision.

Finally, there are provisions for free access to this “fuller-text” version of the Google product, via dedicated terminals. One such terminal would be offered to every public library, although it is not clear if public libraries that still lack broadband access would benefit much from this offer. A free terminal would also be available to “colleges and universities,” with one such terminal for each 10,000 FTE (one per 4,000 for community colleges). I am sure that the exact definition of what is a college or university for this purpose will be a matter of some debate.  It is also interesting that no allowance is made for free access at the K-12 level.

For all three of these approaches to “access uses,” there are pretty strict limits imposed on cutting and pasting, and on printing.

Overall, I believe this agreement would increase access to a lot of books that are currently hard to find or even to know about. But there are significant strings attached to that access; for most people, it will probably come with a hefty price tag, which was not part of Google’s original, Utopian vision for its project.  The strict limits on access, both to the libraries’ own digital copies of books and to the public “access use” versions, seem to be what led Harvard to decide to continue to withhold in-copyright works from the project and remain at its limited level of participation.  Most troubling to me, however, is that this agreement would seem to move us one more big step in the direction of per-pay-use, where every library resource would be licensed and metered.