A Monopoly dressed in a Class-action Suit?

Dan Clancy, head of Google Book Search, presented and took questions at the American Library Association conference Jan 24, 2009.

He presented the class-action settlement that proposes a new copyright system that would allow Google to scan and sell digital access to almost all books published in the last 85 years.

Brewster Kahle, Internet Archive, asked a series of “yes/no”
questions to clarify some issues.

* Is this settlement modifiable? Dan Clancy: Yes, by the court. [This window closes in June 2009, I believe]

* Was this settlement negotiated primarily by people bound to secrecy?
Dan Clancy: Yes.

* Under this settlement, can any other registries serve the exact same roles as the proposed new registry organization?
Dan Clancy: No.

* Under this settlement, can any other organizations get every legal immunity to copyright suits that Google gets?
Dan Clancy: No.

* Does this settlement make it more difficult for others to enter the
area of out-of-print digital book provisioning?   Paul Courant,
University of Michigan, professor of economics: in his opinion: yes.
Paul had in previous comments on this panel that Google would be a monopoly.

(I confirmed the yes/no at the end of the responses.)

-brewster

7 Responses to “A Monopoly dressed in a Class-action Suit?”

  1. Google Book Settlement Link Dump Awesomeness at pureinformation.org Says:

    [...] Open Content Alliance: A Monopoly Dressed in a Class-Action Suit? [...]

  2. Alexander Macgillivray Says:

    Brewster,
    Alexander Macgillivray here, one of Google’s lawyers and, as you know, one of your long-time admirers. Being an attorney, I appreciate the lawyerly invective only partially hidden in your deposition-like questions (grin). In addition to responding to the questions, it is probably worth also trying to respond to what I take to be the meat behind each of these questions.

    “Is this settlement modifiable?”
    I’m not sure whether Dan misspoke or was misunderstood but the settlement is not modifiable by the Court. The Court’s choice is either to grant or deny the parties’ motion for final settlement approval. Whether another version could be agreed to and submitted for further approval of the Court would be up to the parties (and far from certain). Probably worth you getting that answer as well from the attorneys you are talking with but it is not something that is up to Google.
    I think the meat of this question is more like “Can we get all the benefits of the settlement but get the Court to tweak one or two of its provisions?” As I said above, my understanding is that the answer to that question is “no.” If an objector objects, even if only to change one provision, and is successful, the settlement would not be approved. Whether it could then be amended and resubmitted for approval should not be taken for granted.

    “Was this settlement negotiated primarily by people bound to secrecy?”
    The one word answer here is “yes.” All of the settlement negotiators were bound by NDAs. However, I think the meat of this question is asking why you weren’t involved in the negotiations, or more broadly why we didn’t make all of the negotiations public before beginning the notice period. As with many negotiations (indeed all class action settlement negotiations that I am aware of), we didn’t think it was feasible to include the whole world. I think this is also the way the Open Content Alliance conducted negotiations on terms with Microsoft and I remember the secrecy accompanying your Yahoo! announcement. Instead we included representatives from the groups bound by the settlement. For everyone else, whether they choose to receive the benefits or be bound by any restrictions of the settlement is their choice. They can make that choice in as open or private a way as they feel. We also included a group of our library partners in the negotiations to ensure that we would have choices available to libraries that would be beneficial and useful to the wide range of libraries that may be our partners. All of us were also mindful of the public benefit we hoped to create. The full text of the settlement agreement is publicly available on the settlement website.

    “Under this settlement, can any other registries serve the exact same roles as the proposed new registry organization?”
    I’m not sure what this question means. Perhaps you can respond to clarify what you are getting at. The Book Rights Registry has many roles. For example, it should be a source of rights information to Google and other projects which is a task that is already being partially performed by many other groups including the newly formed ARROW registry in the European Union. It will also be a licensor of authorizations to Google and other projects similar to a variety of existing groups such as the Copyright Clearance Center in the United States. Another one of the Book Rights Registry’s roles is to pay rightsholders the money due to them for online access or other models available through Google. Other registries do not have that role with respect to Google in the settlement agreement.

    “Under this settlement, can any other organizations get every legal immunity to copyright suits that Google gets?”
    I assume you mean releases here rather than “immunity,” but, given that, the answer is “yes.” The settlement does not change the legal landscape at all in terms of other parties’ ability to negotiate releases, even in a broad way. Nor does the settlement change Congress’s ability to grant immunity from copyright suits.
    However, I think the meat of this question is about whether the settlement itself gives the same releases as Google’s to others who were not part of the suit or negotiation, such as the Open Content Alliance. In that formulation the answer is “no” but remember that the releases are part of a complete package that includes restrictions on what Google can do and payments. We did not make those decisions for you. As it is, we are helping to fund a Book Rights Registry with which you and others can negotiate (only if you choose to) for similar or different types of deals, and of course we continue to support good orphan works legislation to unlock the tremendous value of orphan works. Our proposal [pdf] regarding orphan works is available through the Copyright Office’s website.

    “Does this settlement make it more difficult for others to enter the area of out-of-print digital book provisioning?”
    The answer here is a clear “no.” I won’t speak for Paul Courant but given how different some of our answers were from how you portrayed them, I wouldn’t be surprised if his answer was also different from how you put it. His comments on the Darnton piece are on his blog.
    For my part, though I’m not quite sure what you mean by “provisioning,” there are a bunch of reasons why I think this will help other projects that might want to provide access to out-of-print books. The creation and funding of the Book Rights Registry and the notice program were designed in large part to encourage people to come forward and register their works. This will make it much easier to agree with a rightsholder about the non-orphaned out-of-print books. It may even mean that some out-of-print works become so popular that they are brought back in-print by their authors. It should also mean that far fewer books remain orphaned over time because of the settlement’s incentives for rightsholders to come forward and register. All of this will mean that providing access to out-of-print books that are in-copyright but not orphaned will be much easier. Even for in-copyright books that remain orphaned, the settlement provides at least a few additional ways to get access to these books but should also be an example of what may work in terms of orphan works legislation or other agreements. We’ve both been involved in failed attempts to secure orphan works legislation in the United States without such an experiment, perhaps the settlement will prove useful in helping Congress to act in a way that recognizes the tremendous cultural value of these books.

    -Alex

  3. Paul Courant Says:

    Hi, Brewster,

    Looking back on my part in the Q and A at ALA, I realize that I should have stuck to my own logic and answered “compared to what?” There is no doubt in my mind that the settlement makes out-of-print and in-copyright works far more accessible than any other plausible outcome, and that is the most important point.

    My answer at ALA was not a simple “yes,” but, according to the ALA piece on the session, was “in my completely amateur opinion, yeah.” So I was answering what I took to be a question about law, and giving an inexpert opinion about orphaned works. With regard to the broader question of markets for out-of-print works, I believe that the settlement generally opens things up.

    Regarding the question of monopoly, I have a blog post that relevant to the subject at http://paulcourant.net/2009/02/04/google-robert-darnton-and-the-digital-republic-of-letters/.

    Paul Courant

  4. Karen Coyle Says:

    Alex -

    Thank you for your answers. As someone who isn’t in the legal profession, getting this legal background is very helpful. I suspect that the added complication of “class action” is significant in all of this, but I have no idea what that really means.

    I don’t know what Brewster’s motivation was in asking about the NDA, but I can tell you what *I* am finding frustrating about it: it’s very difficult to understand the settlement document at the best of times, but even more difficult without certain background information. Let me give you one simple example: in a recent meeting, a librarian stated dismay that at no point does the settlement document mention school libraries. Without further information, we don’t know if they were left out of the lists of libraries inadvertently (since most librarians informing the agreement are on the academic and research side of things and could have simply forgotten) or if there is some particular reason why school libraries aren’t included. Is that information covered by the NDA, or can we get an answer?

    I totally understand why these kinds of negotiations are done under NDAs, but I would really appreciate getting answers where we can, if that is possible. Dan Clancy cleared up some puzzling things at the ALA meeting in Denver, and I suspect that there are other non-sensitive bits of info that would help us outsiders interpret the intent of the settlement agreement. I’ve been keeping a running list of questions that I’m aware of, and I’ve also seen a fairly long list put together by ALA (I’ll ask if that can be made public). I think that many of the questions on my list are simple attempts to understand the legal language. (There were sentences I would like to dare someone to diagram!) Some of these questions may not have answers, but there are many people in the library world trying to understand what this settlement means to us and to the public.

    My list is at:
    http://kcoyle.blogspot.com/2009/01/start-at-questions-list.html

    It will continue to grow, I’m sure.

  5. Karen Coyle Says:

    Correction: the settlement document DOES “mention” school libraries, but they aren’t included in the list of libraries that will be able to apply for the “public access service.”

  6. Google Granted Dangerous Monopoly, DMR Requirements in Settlement with AAP at Nick Dynice Says:

    [...] terms are still modifiable, and the court will hear objections up until June 2009. But you have to wonder if Google’s own Dan Clancy has any objections to the monopoly that [...]

  7. best registry guy Says:

    Have to agree with what Alex said. 100% right :)