Plus ca change, plus c’est la meme chose (GBS again)

In the brief time since the Amended Google Books Settlement was filed with the court (on Friday the 13th) and released to the public, there has been a flurry of commentary from a variety of perspectives.  Two interesting themes have emerged, however, from those on both sides of the great debate over whether the Google Books project is a good thing or a bad thing.  First, both sides seem to acknowledge that the changes have not been all that substantial.  Second, no one seems to think that the debate and legal maneuvering is really over.

Here is a quick look at what I perceive to be the major changes.

First, and probably most significant, the Settlement is now very clear that it applies only to books registered for copyright in the US or published in the UK, Canada or Australia.  This is an obvious attempt to avoid the objections and potential legal complications of including in the new Google products books subject to different copyright regimes and different author expectations; this comment on the Stanford Cyberlaw blog calls it “a policy-oriented maneuver intended to remove political pressure coming from abroad.”  It is interesting to consider what this means for the actual Google Book search results.  Will we continue to see snippets only of “foreign” books scanned by Google in the free database?  If so, does that indicate that Google really is continuing to assert fair use in some cases?  Or will these books disappear altogether?  In any case, we know that under the new terms, such works from other countries will not be part of the institutional subscription database, and that fact will substantially lower the value of the product.  Many of the works that will now be excluded are the very ones that research libraries have the most difficulty obtaining via interlibrary loan, so they are ones we were most counting on finding in the Google subscription database.  We must expect that the pricing of that database will be adjusted to reflect a significant decrease in value offered.

The next important thing to note about the amended settlement is what it does not do.  It does not address the concerns over reader privacy that have been expressed by many groups.  The Electronic Frontier Foundation expresses its disappointment about this lack of a privacy plan here.  In a conversation about this topic yesterday, a colleague of mine made the point that for Google to offer a privacy plan for this product would beg the question of privacy policies enterprise-wide, and that is a discussion Google, which depends on targeted advertising, does not want to have.

On the positive side, the amended settlement does clarify that rights holders can elect to allow free availability of their out-of-print but still in-copyright books, or to have them released subject to a Creative Commons license.  This will be a significant benefit to academics who have retained or reclaimed copyright in their own books; unfortunately, that is a much smaller class of authors than it should be.

In many ways the heart of the settlement, its huge compulsory license to Google to commercialize orphan works and other unclaimed titles, has not changed much.  There is a nice discussion of this aspect of the matter in this New York Times article.  The basic change being made is some restriction on how the money generated by sales of these works can be spent, and the appointment of an independent “fiduciary” to the Books Rights Registry board to protect the interests of this immense unrepresented class  The fundamental legal problem of an inappropriate use of the class action suit to create this license does not, and probably cannot, change.  Without that license, there is little if any incentive for the parties to bargain at all.

The great unknown in all of this is whether the Books Rights registry will be able to license other parties to exploit orphan works in ways similar to the opportunity the settlement creates for Google.  The provisions of the first settlement that had been known as the “most favored nation” clause, which said that the BRR could not give anyone else more favorable terms than Google got, has been removed — see the changes in sections 3.8(a) and 6.2(b) in the above-linked “redline” version of the settlement.  So it is now the case that if the BRR can license orphan works at all, it can give favorable terms to other parties.  But that is a very big “if.”  As James Grimmelmann explains in this post, it is not at all clear that the BRR will have this authority until and unless Congress acts to resolve the orphan works dilemma legislatively.  The NY Times article also seems to believe that this change depends on Congressional approval before the new independent fiduciary can assist with other orphan works projects.  So Google likely still has its exclusive position, which could only be threatened by an unlikely combination of Congressional action and very deep pockets.

Overall, it is hard to argue with the title of this article from Library Journal which suggests that the amended settlement agreement makes only minor changes, and, as noted above, the most significant change probably decreases the overall utility of the settlement to academic libraries.  The LJ article quotes a spokesman for the Open Book Alliance (which opposes the Google project) to the effect that the settlement is “sleight of hand.”  Even allowing for the bias source of this quote, I think it reflects a truth, that Google and its partners (which is what they are, as opposed to opponents, at this point) wanted to change the agreement as little as was necessary to slip by the complaints raised by the Justice Department.  As the NY Times article notes, that is really the only critic of the original deal that the settlement is designed to placate.  Whether it has gone far enough to satisfy the DoJ is still an open question.