Looking for the devil in the details

The more I read the Google Books settlement agreement, and the commentary it has spawned, the more I become convinced of two things.  First, this beast of a document will keep many lawyers in business and give many librarians headaches.  Second, it is the things we do not know that will be most troublesome.  The following is an unsystematic list of issues that I have been thinking about regarding the agreement, with no particular order and few definite conclusions.

Advertising — Perhaps it should be obvious, but Google Books is about to take on a very different look, as it becomes populated with advertising.  Up til now, Google has not sold advertising for these pages, probably to avoid undermining its fair use argument.  At this point, the only commercial links one gets when doing a search in Google Books are those to sources from which one can buy the books.  The settlement agreement explicitly authorizes advertisements on the Preview Use pages and anticipates ads on the results pages as well.  The agreement provides for the standard 70/30 split for advertising revenues (the Registry that represents publishers and authors gets the larger percentage), so it is now in the interests of the rightsholders to permit and encourage advertising.  This is not shocking, but it does further detract from the “social benefit” justification that Google has used for years and that has made it so appealing to librarians.  Book searches on depression or Alzheimer’s being used to sell the latest fad pharmaceuticals to treat those conditions might cause libraries to rethink the place of even free access to the Google product in their overall mission.

Orphan works — Does this agreement really spell the end of legislative attempts to reduce the risk of digitizing books that are still in copyright protection but for which no rightsholder can be found?  Larry Lessig certainly implied that it does in his initial post reacting to the deal.  Consider that there will be much less incentive to adopt such a proposal if many of the works involved are available for viewing via institutional subscriptions to Google Books or even for individual purchase.  By making allowance for unclaimed funds coming into the Registry that the settlement agreement will create, Google and the publishers clearly expect to make money off of orphan works.  As I suggested earlier, pay-per-use may well replace legislative attempts to refine the balance between rights protection and socially valuable uses, and libraries that want to make obscure works available to a broader public will be the losers.

It is worth noting that the agreement itself makes some allowance for the adoption of orphan works legislation, providing that both Google and the Fully Participating Libraries can take advantage of such legislation if it ever becomes law.  What we do not know is whether or not the Book Rights Registry would become available to users who wanted to use orphan works as part of their diligent search for rightsholders; it would be a tremendous resource but, at least initially, it is structured as a closed and private database.  See Georgia Harper’s interesting post on this issue here.  We also don’t know if the agreement will have such a pervasive effect that Congress will not bother to take up orphan works in the first place; they certainly have not been on fire to do so up to now.

Defining the public domain — I have complained before that Google has used a very narrow definition of the public domain, especially in regard to government publications.  On this score, the agreement seems to move things in a positive direction, at least in regard to the contents of the Google Books product itself.  Google has argued that it had to be careful about using government works because of the possibility that they would contain “inserts” (to use the term now adopted in the settlement agreement) for which there could be a continuing copyright interest.  This agreement would seem to remedy that concern by allowing for uses of such works unless the owner of the rights in the insert objects.  Even then, Google can appeal the objection using the dispute resolution procedure specified.  The restrictions on other public domain works that are still commercially available seem sensible to me.  If a PD work contains an insert to which a copyright interest still adheres (an introduction, for example), then all earlier editions of the PD work that contain that insert are treated as commercially available (and therefore “non-display”).  Editions without such inserts will remain in the public portion of the Google database.  On the other hand, out-of-print editions of a work that is still in copyright and is commercially available in another edition will all be treated as commercially available.

Future publications — One of the trickiest aspects of understanding this document is the definition of “books” that it uses.  Careful reading indicates that that term encompasses only works that are in copyright protection and registered with the Copyright Office as of the settlement date.  That means that this agreement deals only with works already published; it does not seem to tell us anything about how or if Google will deal with books (in the non-technical sense) published in the future.  The obvious conclusion is that publishers will be able to opt-in to all or some of the “display use” (snippets, preview, sales of institutional subscriptions or individual titles).  I wonder if such new publications will be subject to non-display uses (text minig, i.e.) when and if Google scans those works, or if those too will be opt-in only.  I also wonder what will happen when works published after the settlement go out of print.  Will publishers have to opt them out of display uses at that point, or will the original opt-in still control?  Finally, how often will the database to which institutions can subscribe be updated, and how will the effect of new content have on the price for that product be determined?

Commentary that is worth reading about the settlement agreement includes:

Karen Coyle’s “pinball” comments here.

Open Content Alliance’s objections here.

This Washington Post article on Google’s New Monopoly (requires free membership).

PC World’s article on how business considerations have trumped ideals in this negotiation.

3 thoughts on “Looking for the devil in the details”

  1. Kevin, the things published after a certain date (in 2009 I think) are simply not a part of the settlement at all. All future-published books’ copyright owners have to do deals directly with Google through its partner program. Only books that existed and that were protected on the date are subject to the settlement terms. Google is not claiming rights through the settlement or the Registry to books published in the future. Thus, the deal really is about orphans and out of prints. Currently protected in print books as well as future-published books Google must obtain through direct negotiations with their owners or they will not be part of GBS. Google already has direct deals with every major publisher in the US (and is working on others and internationally too).

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