The deal with the Google Book Search settlement

Google Book Search has been in the news lately for a settlement it made with the Authors Guild and the Association of American Publishers over Google’s plan to scan books. You may have heard that  people are pretty worked up about the settlement.

It matters for academics because the settlement will in large part dictate the terms under which many books are available online.

If you’re confused about the settlement, you’re not alone. I’ve been wading through blog posts and news items trying to get my head around what’s in the agreement. Here’s my best effort at a description of what’s going on, for us non-insiders. I can’t promise all the details are 100% accurate, and please correct me if I’m mistaken, but this is my understanding.

The players:

• The Authors Guild is an advocacy organization based in New York. Its 8,000 members include published authors, literary agents, and attorneys.
• The Association of American Publishers (AAP) is the primary trade and lobbying association of the American publishing industry. Its members include the major commercial publishers.
• Google — well, you know who Google is.

What Google was up to:

• Beginning in 2003, Google’s Book Search project aimed to scan every book in the world, making them searchable and available to read and print — for a fee.
• Google got its hands on all these books by reaching agreements with huge libraries, including the New York Public Library and those of Stanford, Harvard, and the University of Michigan. Google pays for the scanning.

Google gets sued.

• Publishers were not happy about Google’s plans. In 2005, the Authors Guild and the Association of American Publishers filed suit, claiming that Google’s activities violated authors’ and publishers’ copyrights. The two groups were especially mad about Google’s policy of showing free snippets of books that were still under copyright.

The lawsuit is settled.

• In October 2008, Google, the Authors Guild, and the Association of American Publishers reached their own settlement — so, the courts didn’t decide the settlement; these three private organizations did.

What the settlement looks like:

• Three classes of works: In terms of copyright, the settlement considers three different kinds of books. First, there are books that are under copyright and commercially available. Google can still scan these books, but it can only display bibliographic information on them — no snippets.
• Second, there are books whose copyright has expired. Everyone figures that these are pretty much moot, since nobody can tell Google, or anyone else, not to scan them.
• Finally, there’s the class that everyone is concerned about: books that are out of print but still under copyright. People often call these “orphan works“: their publishers have gone out of business and the authors are hard to find, so nobody’s around to tell Google to stop scanning them. And yet, the books are still technically under copyright.
• Under the settlement, Google can keep scanning these orphan works.
• The settlement creates a new organization called the Book Rights Registry (BRR), consisting of representatives from Google, the Authors Guild, and the Association of American Publishers.
• The BRR will administer the proceeds from Google Book Search.
• Google agrees to give the BRR $125 million to start.
• An author whose work has already been scanned by Google can get $60 from the BRR in compensation, and can also request to have his or her work removed from Google Book Search. Google has agreed to launch a print campaign to alert authors of these rights. But nobody really expects a critical mass of “orphan” authors to turn up — they’re hard to find.
• Revenue from Google Book Search — generated from advertising, licenses, and individual book purchases — is divided up: 37 percent for Google and the rest for the BRR.
• Google will display 20% of the contents of orphan books for free.
• Google can sell access to the full text of orphan works via a license to institutions (like libraries) or on a book-by-book basis to individual consumers.
• Google also agrees to provide free access to the book search database via a single terminal in every public library.
• If other groups want to scan orphan works, they can, but only after obtaining rights from every author in question. This is not going to happen on a large scale, since the authors are so hard to find.

Why opponents say:

• In effect, Google now has a monopoly on full-text access to the world’s orphan books. Technically, other groups could scan orphan works, but only after getting individual authors’ permission. It would be impossible to do this on the same scale as Google.
• Three private parties — none of which actually holds the copyright to the works in question — have worked out this monopoly without the involvement of the courts or the legislature.
• To some people, what’s happened seems like a perversion of copyright law. Everyone wants authors to get paid for their works. But under this settlement, the good stuff about copyright (the authors getting paid) disappears and the bad stuff (restricted access to the works) remains in effect.

What proponents say:

• Nobody else was doing this on the same scale as Google. Microsoft was making noise about it, but it quit in 2008. Yahoo has partnered with a non-profit group called the Open Content Alliance to make works available. But not on the same scale as Google.
• These books will be searchable when they weren’t before.
• Google paid for the scanning, so it should be rewarded.

What’s happening now:

• The settlement has to be approved by the court. Several groups, including the American Library Association and the Institute for Information Law and Policy at the New York Law School (this latter bankrolled by Microsoft) plan to raise concerns with the court about the settlement. So far, though, they aren’t challenging the settlement outright.
• In considering the legality of the settlement, the court is not considering the general question of orphan works — just the fairness of the settlement to the three parties involved. So most people expect the settlement to be approved.
• The consumer advocacy group Consumer Watchdog has appealed to the Justice Department to overturn the settlement, on the grounds that it violates antitrust laws.
• Harvard has revoked Google’s access to its library, saying it’s not happy about the restrictions Google will place on access to the book search database..
• Congress could conceivably institute more wide-ranging legislation of orphan works. The Orphan Works Act of 2008 tried to make orphaned works more widely available, but the bill never made it out of committee.

My remaining questions:

• The settlement says that 37% of Book Search’s proceeds goes to Google and the balance to the BRR. What happens to this money once it goes to the BRR? Is it simply used to administer the organization?
• What is the legal mechanism that authorizes the Authors Guild and the Association of American Publishers to sue (and agree not to sue) on behalf of copyright holders?

Want to find out more?

The article people most cite about the settlement is a New York Review of Books piece called “Google & the Future of Books,” by Robert Darnton, the head of the Harvard library system.

The American Library Association has some really helpful resources, including a “Guide for the Perplexed.”

I found the New York Times‘ Times Topics page on the settlement very useful.

Here’s a somewhat overwhelming link dump of posts about the settlement.

This cnet article does a nice job of summarizing all the shenanigans.

Google has a page on the settlement.