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Google book settlement has librarians worried

The American Library Association and the Association of Research Libraries …

The deal Google cut with publishers to settle their copyright infringement suit would give a green light to the search giant's book-scanning services and turn it into a retailer of out-of-print books. But resistance to the deal has been growing, as a variety of parties are realizing that the settlement gives both Google and the Book Rights Registry created by the deal enormous power over the dissemination of the scanned material. The latest groups to weigh in represent research librarians, who are worried about the deal's privacy implications and the lack of guarantees of current and future access. The solution, in their view, is to structure the settlement in a way that guarantees the court the right to intervene in the future.

The groups involved—the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries—have sent the court that is conducting hearings on the settlement have submitted comments on the deal, made as parties to the settlement (many librarians publish as well), in which they voiced their worries. The judge had previously rejected the Internet Archive's attempt to become a party to the case, but had indicated he would accept various forms of input on the settlement.

Concerns over missing details

The librarians make clear up front that they don't oppose the settlement, stating that it "has the potential to provide unprecedented public access to a digital library containing millions of books," which is consistent with libraries' core mission: "providing patrons with access to information in all forms, including books." But Corey Williams, who's with the ALA's Office of Government Relations, told Ars that the group is as much concerned with what's not in the settlement as what is. Two areas that the agreement is largely silent on are traditional concerns of libraries, namely public access to information and user privacy.

"This was a private settlement agreement between three entities, and the negotiations were not open to others participating, so we had no voice in what the settlement would look like," Williams told Ars. "We've heard a handful of libraries that are participating in the book scanning were engaged to varying degrees, but those conversations were gagged." As such, the groups and their members felt that the settlement agreement was overly focused on the business agreements among its parties, while leaving a number of public interest issues unspecified. The comments are an attempt to point those issues out in the hope that the judge overseeing the case will incorporate some specifics.

Librarians have a long history of standing up for the anonymity of their institutions' patrons, having recently stood up to the FBI regarding records queries made under the Patriot Act. The settlement, as structured, would make their facilities gateways to the Google book collection, including works that individual library users may wish to purchase. But, in contrast to access of library materials, Google would have complete control over the personal information obtained during interactions with book material. "The settlement itself does not specify how Google and the Registry will protect user privacy," Williams noted. "It's silent on what user information will be retained and how it's used."

The other issue—access to the content—can be viewed as two different worries: what material will be accessible, and how much will it cost. The comments note that, under the terms of the settlement, Google will be able to exclude up to 15 percent of what it scans, entirely at the company's discretion. As the company has cooperated with government censors in the past, the libraries find this a bit worrisome. Google also gets to control the access to the book data by academic researchers that are interested in mining its text.

But regardless of what material's there, the comments note that there are serious concerns regarding whether the price of the service may limit access. The settlement promises a free access terminal, but that may be grossly insufficient for large university or public libraries, many of which already claim that they're suffering from an insufficiency of terminal access. There are also worries about the vagueness of access pricing as spelled out in the agreement, which calls for it to be comparable to "then current prices for comparable products and services." The text mentions the concern that the "comparable products and services" will wind up being academic research journals, which have seen skyrocketing prices in recent years. As Williams put it, "absent of any other product out there that looks like this one, the only model we can look at is what's happened in the journal subscription area, and that's a worry."

Ensuring competition

But there's also a clear recognition that Google is way ahead of anyone else that's actively scanning books, and is likely to stay that way for some time. "Competition and influence—the potential lack there of—are serious concerns," Williams said. "If there aren't competing products to choose from, then there are definitely worries down the line." Instead of simply allowing the Book Rights Registry to license material to other parties, the libraries would like to see efforts made to foster competition, which may help limit some of the other problems outlined in the comments.

Because so little has been specified by the agreement, and so many of these issues will be worked out once the service goes operational, the librarians call on the judge to engage in long-term monitoring of the implementation of the settlement. Jonathan Band, who helped the organizations draft the comments, told Ars that "class action settlements often do require long-term involvement by courts—judges often appoint special masters to oversee these kinds of settlements."

We also asked Band about the tendency to focus on Google's lack of competition, which sounded a bit like an antitrust issue. "This is a somewhat unusual situation in that the underlying case involves claims of copyright infringement, not antitrust violations, and it is the structure of the settlement that raises the competition issues," Band replied, "But precisely because the settlement raises the issues, the judge has the authority to address them without requiring a separate finding of an antitrust violation."

In the end, the concerns voiced here echo those voiced by other groups. The settlement is structured so that it addresses the specific needs and concerns of the parties directly involved, but the implications of the settlement are pretty widespread. As the document notes, they include "fundamental library values such as equity of access to information, patron privacy, and intellectual freedom." As Williams told us, "We're very supportive of digital content, and we see the settlement as being pivotal in setting precedents for accessing digital content, but we're concerned with the cost, and don't want to see rights eroded.

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10 Reader Comments

  1. What would a librarian riot sound like?
    188 posts | registered
  2. "and don't want to see rights eroded"

    You better close your eyes then. Because, that is exactly what is happening.
    595 posts | registered
  3. quote:
    Originally posted by mknopp:
    "and don't want to see rights eroded"

    You better close your eyes then. Because, that is exactly what is happening.


    Maybe, but the two organizations mentioned are the few that will stick up for fair use.
    26248 posts | registered
  4. Google spent the money scanning these books, created the database and search engine to find the books, why shouldn't they get to be the monopoly until a competitor has the balls/cash/innovation to do better...?

    My point: If you're going to run a capitalist / corporatist system, you have to let it run its course if you want it to be effective.
    26 posts | registered
  5. quote:
    Originally posted by nzruss:
    Google spent the money scanning these books, created the database and search engine to find the books, why shouldn't they get to be the monopoly until a competitor has the balls/cash/innovation to do better...?

    My point: If you're going to run a capitalist / corporatist system, you have to let it run its course if you want it to be effective.


    I'd probably even agree with you, except for one thing: the basis of the whole thing, copyright, is a government sanctioned and controlled monopoly on publishing rights that has nothing to with a capitalist/corporatist system.

    If the government is going to control distribution rights, it should at least make sure the control isn't all one sided.
    645 posts | registered
  6. quote:
    Google spent the money scanning these books, created the database and search engine to find the books, why shouldn't they get to be the monopoly until a competitor has the balls/cash/innovation to do better...?


    The fear is that, at such time that a competitor has the "balls/cash/innovation" to try to do what Google is doing, they will be sued out of existence, much like Google would have been if it wasn't big, rich, and ballsy enough to do something illegal, get sued for it, and secure a favorable settlement that lets them keep on doing the illegal thing legally - which is not precisely a viable business model in general, as aptly demonstrated by Napster.

    (Negotiating the rights in advance, from my understanding, isn't an option because of the issue of "orphan works," which are still in copyright but the rights-holders aren't known or can't be found. This sort of class action settlement changes things around so that the legal burden is on the rights-holders to object and withdraw from the class, not Google to get approval from each right-holder.)

    IANAL, and could always be misunderstanding the concerns.
    134 posts | registered
  7. quote:
    Originally posted by anowack:
    quote:
    Google spent the money scanning these books, created the database and search engine to find the books, why shouldn't they get to be the monopoly until a competitor has the balls/cash/innovation to do better...?


    The fear is that, at such time that a competitor has the "balls/cash/innovation" to try to do what Google is doing, they will be sued out of existence, much like Google would have been if it wasn't big, rich, and ballsy enough to do something illegal, get sued for it, and secure a favorable settlement that lets them keep on doing the illegal thing legally - which is not precisely a viable business model in general, as aptly demonstrated by Napster.


    AFAIK, the question of whether or not what Google is doing is actually illegal has not been answered. It's not been answered because the settlement agreement is going forward, rather than the suit.

    Other than that, it seems like a reasonable explanation of what's been going on.

    In order for anyone to attempt to 'compete' with Google on this, they will need to either obtain an agreement in advance, which is problematic because of the orphan works issue (as pointed out in the section of the post I omitted), and also because the other interested parties will already have an agreement and therefore very little incentive to enter into another agreement that will only reduce the value of their works. And AFAICT, there's no legal requirement for the copyright holders to licence their works to another individual/group.

    The alternative is to get hit with the lawsuit and fight it and succeed. This is an amazingly expensive business proposition, and risky to boot. I've got no idea how likely it would have been for Google to win the suit filed, and I don't think that anyone else does either (but if someone other than t_vor has evidence that it's clear-cut, I'm willing to look at it).

    Given the obvious risks, and the low chances of being able to profit off of the construction of a competing service, I think that the ALA's concerns are legitimate.
    5864 posts | registered
  8. It's nice to see the ALA once again looking out for privacy and access rights.

    Great article.
    4364 posts | registered
  9. Nice that ALA steps up to the plate here. They've got institutional tradition on their side (or on their backs): librarians frequently and rightly (mostly) point with pride to their defense of the privacy of their borrowers. ALA's filings provide a platform to reassert the righteousness of America's public and university libraries as a whole.

    Righteousness, if not business acumen. From the point of view of strategic vision, the libraries let really themselves in for this one. Did they really not foresee, as they ran into Google's waiting arms, that Google's offer to digitize their collections might well lead to a class action suit? Now they're approaching the table, post-settlement, striking a stance as best they can.

    Can anyone really doubt that Google recognized long before approaching the libraries in the first place that a class action suit would almost certainly result and, in the settlement, provide Google with a court-approved mechanism for cost recovery?

    But all that notwithstanding, it's nice that the ALA steps in now. It's nice that it has dawned on them that behind Google's "Do No Evil" public face there might lurk a corporate heart just as cold-blooded, acquisitive, and voraciously expansion-oriented as any on the face of the earth...

    'Nuff for now.
    2 posts | registered
  10. Those who would like a PDF copy of the 22-page document that these three librarian groups filed with the court can find it posted here:

    Google Settlement Documents

    That webpage also includes downloadable copies of other court documents in this dispute and links to news and opinion articles about it, particularly in Europe, where opposition to it among writers is growing fast. In Germany, over 1600 writers have signed a Heidelberg Appeal, asking their government to take action against the settlement.

    Because the focus is on U.S. copyright, the settlement makes little distinction between U.S. and foreign writers (who are regarded as having a "U.S. copyright interest"). If the settlement is approved by the court, those who do not formally opt out of the settlement by the deadline will lose almost all their ability to sue Google for copyright infringement in U.S. courts. That is true even if they live in a distant country and have never heard about the agreement.

    That's why this agreement may set off a copyright war with the U.S. as countries realize just what it means for their citizens.

    For the record, I am one of the seven authors (and their representatives) who filed a letter with the court on April 24, requesting a four-month extension of the settlements deadlines. The court approved our request on April 27. You and I now have more time to study and debate a settlement that means much, much more than Google press releases have been saying.
    230 posts | registered

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