Google Books Deal Will Shape Landscape, For Better or Worse
SAN FRANCISCO -- Whether a settlement gives Google Book Search the inside track for online access to the contents of books or opens access widely remains in sharp dispute as a judge’s decision approaches. Participants in the deal (WID Oct 29 p6) stressed late Friday that it provides for no exclusivity between Google and a book-rights registry that the company would finance to enable digitization approvals by authors. But critics from the Internet Archive and the Electronic Freedom Foundation countered in a debate at a State Bar of California copyright seminar that the settlement would still, in effect, give Google a monopoly over providing books online.
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Google went for the settlement because of the “huge user benefit,” including public access to the full texts of many books, said Alexander Macgillivray, an associate general counsel at the company. If the lawsuit had been fought to the end, the company expected to win a narrow fair-use decision from the Supreme Court in favor of the right to provide snippets from copyrighted works, he said. The settlement provides for putting a terminal in every publicly financed U.S. library for access to the full text of digitized books, Macgillivray emphasized. Allan Adler, the Association of American Publishers’ vice president for government and legal affairs, said the case was headed toward five or six years of litigation leading up to a “probably unenlightening Supreme Court decision on fair use.”
Brewster Kahle, the chairman of the nonprofit Internet Archive denounced the settlement as “fundamentally legislative” in effect, and the result of “secret negotiations” among the lawsuit parties. He called it “an end run, a closedown, a shutdown” of other book-digitization efforts that was “incredibly clever.” There’s “hardly any room for maneuver” when the deal is presented to a U.S. district judge in Manhattan at a hearing scheduled for June 11, he said.
Kahle contended that the registry -- to track the copyright status of all books published in the U.S. before early January and the access preferences of authors -- would hold a powerful “monopoly.” “I'm a big fan of democracies, capitalism and distributed processes,” he said. “This violates all three of those things” as an agreement among insiders to control online access to books and prevent the entry of a large number of competitors. He suggested a publicly financed open-access alternative but didn’t provide details.
Adler called the accusation of monopolization “highly uninformed.” He said the settlement and its limitations are normal for private litigation and “this negotiation never would have been completed” in the open. Macgillivray said the requirement that the judge approve, along with the one that the authors who are class members be notified, provide “a whole lot of light and democracy” in the process.
But Fred von Lohmann, an EFF staff lawyer, said the settlement would create “a huge competitive problem” because by law the rights registry’s authority is limited by the scope of the lawsuit’s parties. For “many years” at least, the licensing deal that Google would get wouldn’t be available to any would-be competitor, von Lohmann said. Jan Constantine, the Authors Guild’s general counsel, acknowledged that the registry couldn’t license to anyone but Google “orphan” books -- those out of print but under copyright -- whose authors don’t come forward to collect the payments of $60 to $300 that the settlement would provide.
ASCAP and BMI, which settlement defenders had compared the registry to, also are non-exclusive, but they're required to “operate under a Department of Justice decree,” von Lohmann said. But he emphasized that he isn’t opposed to the Google Books settlement or calling it illegal or even a bad idea overall. “I'm actually quite torn about it.”