The Washington Post recently ran this op-ed by me, titled “A Book Grab by Google,” in which I lay out some (but not all) of my problems with the proposed settlement between Google, the AAP, and the Authors Guild. It’s gotten picked up by many blogs, twitterers, and websites, but, for readers of this blog who might not have seen it, I link to it here as well.

I’ve also got a short piece in a new report from Congressional Quarterly Researcher on the future of books, in counterpoint with Dan Clancy of Google, answering the question why I don’t think the settlement will increase digital access to books in the long run. Click on the tab on the left that says “Pro/Con.” (Unfortunately, I’m the “con,” but am looking forward to a return to my usual “pro” self soon enough!)

–brewster

Today Democracy Now! broadcast an interview between Amy Goodman and Brewster Kahle about digitization, the Google Book Search Settlement, and the future of books and libraries (taped on April 17 in San Francisco):

Greetings. The Internet Archive is seeking leave to file a motion before the Southern District of New York U.S. District Court to intervene in the matter of The Authors Guild Inc. et al. v. Google Inc. as a party defendant.

Below is the letter delivered to the Court of the Honorable Dennis Chin.

View Request at Scribd: Archive intervention in Google Book Search

According to arstechnica, Richard Sarnoff, the chairman of the Association of American Publishers, in a public presentation at Princeton University, seems to have admitted that the Google Book Settlement is anti-competitive. The piece reports that …

Sarnoff said that the publishers he represents didn’t set out to create a monopoly in the markets for book search engines or online book sales. But he didn’t deny that the settlement could have that effect. After all, he noted, “copyright itself is a monopoly.”…

Sarnoff said that the structure of the registry will be “tough to replicate for [Google's] competitors.”

and, finally,

Sarnoff also speculated that … [l]egal hurdles may make it infeasible for any other firms to build a search engine comparable to Google Book Search.

Is the Settlement itself one of these legal hurdles?

The Internet Archive first used the term “orphan” to describe books that are no longer commercially viable, (“out of print”); still in copyright; and whose ownership is either impossible or extremely difficult to determine. In 2004 Larry Lessig, Rick Prelinger, and I brought a suit to make it easier for orphans to enter the public domain (Kahle vs. Gonzales). As that case was proceeding, the Copyright Office held hearings and issued a report, which led to proposed orphan works legislation in both the House and Senate.

As that legislation has been wending its way through the Capitol Hill meat grinder, it turns out that Google, the AAP, and the Authors Guild were negotiating their own private solution to the problem of orphan works. After digesting the proposed Google Book Settlement, it becomes clear that the dizzyingly complex agreement is, in essence, an elaborate scheme for the exploitation of orphan works. The class action mechanism allows the Authors Guild (8,500 members) and the AAP (260 members) to extrapolate themselves to include millions of unfindable and unknowable rightsholders to orphan works.  It is to this end–the certification of a class that includes the orphans–that the parties need the blessing of the court.

The upshot, if the Settlement is approved, would be legal protection for Google, and only for Google, to scan and provide digital access to the orphan works. Presto! Like magic, Google proceeds without any need for legislation: their own private orphan works legislation.

So, should the Settlement be approved, Google will be handed exclusive access to the orphans, and the public loses out. With orphan works legislation, orphan works could have been opened up to digitization by anyone: not just Google but competitors to Google, libraries, Open Content Alliance partners, and others. Now, however, no one but Google will have access to the orphan class created by the Settlement, without enduring a similar class action lawsuit from the authors and publishers.

I, personally, am amazed at this creative use of class action law. The three parties have managed to skirt copyright law, bypass legislative efforts, and feather their own nests–all through the clever use of law intended to remedy harms.

This Settlement, if approved by the judge, will accomplish things appropriate to a legislative body not to private corporate board rooms. Let’s live under the rule of law, as arduous as that might be, and free the orphans, legitimately, not for one corporation but for all of us.

-brewster

Peter Brantley has written an inspired post on what’s really wrong with the Google Settlement: it lacks imagination.

An excerpt (but read the whole thing):

The settlement describes a world of time past, not a world of possibilities. … Let us imagine an alternative world where children routinely carry Alexandria in their hands. Where they experience works of literature as games, pushing at the borders of their knowledge and experience by engaging the library with others as a festschrift…. Let us say: we want our citizens to remake these books. We shall allow unceasing access to all books within our libraries; there shall be no barriers between them. (more…)

One of the most surprising, even shocking, features of the Google-AAP-Authors Guild Settlement is how hard it is on libraries. Given that Google Book Search could not have gotten off the ground without the cooperation of various university libraries, it is particularly disheartening that the proposed settlement treats them with such an iron fist at the same time as it expects them to foot much of the bill through subscriptions. It will be interesting to see how many libraries continue as partners, given Google’s bait-and-switch. (more…)

New York Law School professor James Grimmelman has written an impressive, even-handed blogpost about the Google-AAP-Authors Guild settlement in which he lays out five principles to guide the court and the public. He closes with fourteen “recommendations” to the court:

(more…)

Rather than accept the Google settlement with publishers and authors as a fait accompli, or as an obligatory blueprint for the future, the appropriate response is to consider its implications for the future and take all steps to build the world we want to live in. Although the settlement may solve some immediate problems for the parties to the lawsuit, and perhaps some of the contributing libraries who have enabled it, we should not assume that Google Book Search is the only way, or even the best way, to organize and make available our cultural heritage.

This post will outline some of the issues.  Next step is to build an appropriate response, to which we welcome input.  Losing access and control of our cultural heritage as part of a digitization wave is not acceptable.

At its heart, the settlement agreement grants Google an effective monopoly on an entirely new commercial model for accessing books. It re-conceives reading as a billable event.  This reading event is therefore controllable and trackable.  It also forces libraries into financing a vending service that requires they perpetually buy back what they have already paid for over many years of careful collection.

(more…)

“As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher-education community and by patrons of public libraries,” Harvard’s university-library director, Robert C. Darnton, wrote in a letter to the library staff. (more…)