Google Books sued over "orphan books"

Click on the title to this post to read an article from the Chronicle of Higher Education online about orphan books -- the out-of-print works still under copyright, but for which the copyright holder cannot be found. Abandoned works, that is, by both "parents," the publisher and the author, alike, poor dears. The short post by Steve Kolowich actually links out to several other reports, including a longer article from the New York Times, from April 3, 2008, "Google's Plan for Out of Print Books is Challenged." Written by Miguel Helft, the article reviews the Google Books scanning plan, and the suit by authors and publishers that led to a settlement, and then notes:

But a growing chorus is complaining that a far-reaching settlement of a suit brought against Google by publishers and authors is about to grant the company too much power over orphan works.

These critics say the settlement, which is subject to court approval, will give Google virtually exclusive rights to publish the books online and to profit from them. Some academics and public interest groups plan to file legal briefs objecting to this and other parts of the settlement in coming weeks, before a review by a federal judge in June.

While most orphan books are obscure, in aggregate they are a valuable, broad swath of 20th-century literature and scholarship.

Determining which books are orphans is difficult, but specialists say orphan works could make up the bulk of the collections of some major libraries.

Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.

The settlement, “takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,” said Robert Darnton, head of the Harvard University library system. “Google will be a monopoly.”

Google, which has scanned more than seven million books from the collections of major libraries at its own expense, vigorously defends the settlement, saying it will bring great benefits to the broader public. And it says others could make similar deals.

“This agreement expands access to many of these hard-to-find books in a way that is great for Google, great for authors, great for publishers and great for readers,” said Alexander Macgillivray, the Google lawyer who led the settlement negotiations with the Association of American Publishers and the Authors Guild.

Most of the critics, which include copyright specialists, antitrust scholars and some librarians, agree that the public will benefit. But they say others should also have rights to orphan works. And they oppose what they say amounts to the rewriting, through a private deal rather than through legislation, of the copyright rules for millions of texts.

“They are doing an end run around the legislative process,” said Brewster Kahle, founder of the Open Content Alliance, which is working to build a digital library with few restrictions.

Opposition to the 134-page agreement, which the parties announced in October, has been building slowly as its implications have become clearer. Groups that plan to raise concerns with the court include the American Library Association, the Institute for Information Law and Policy at New York Law School and a group of lawyers led by Prof. Charles R. Nesson of Harvard Law School. It is not clear that any group will oppose the settlement outright. (snip)

Authors are permitted to opt out of the settlement or remove individual books from Google’s database. Google says it expects the pool of orphan books to shrink as authors learn about the registry and claim their books.

While the registry’s agreement with Google is not exclusive, the registry will be allowed to license to others only the books whose authors and publishers have explicitly authorized it. Since no such authorization is possible for orphan works, only Google would have access to them, so only Google could assemble a truly comprehensive book database.

“No other company can realistically get an equivalent license,” said Pamela Samuelson, a professor at the University of California, Berkeley, and co-director of the Berkeley Center for Law and Technology. (snip)

Some of Google’s rivals are clearly interested in the settlement’s fate. Microsoft is helping to finance the research on the settlement at the New York Law School institute. James Grimmelmann, an associate professor at the institute, said its work was not influenced by Microsoft. Microsoft confirmed this but declined to comment further.

Amazon also declined to comment. An unmatchable back catalog could eventually make Google a primary source for digital versions of books, old and new, threatening other e-book stores.

This penultimate paragraph refers to a efforts by New York Law School's Institute for Information Law and Policy, which has asked leave of the court to file an amicus curiae brief with the court as it finishes considering the Google Books settlement. Comments close on May 5, and a hearing is scheduled on June 11, 2009. The most interesting part, as noted in the Times article above, is that the Institute is at least partly underwritten by Microsoft on this project. See this blog entry at blog.Wired.com, "Who's Messing With the Google Book Settlement? Hint: They're in Redmond, Washington. The post is dated March 31, written by Stephen Levy and concludes:

The chief investigator of the New York Law School project is James Grimmelmann. In an earlier career phase, associate law professor Grimmelmann worked as a programmer for Microsoft. At a conference in February, Grimmelmann was discussing his views of the book settlement with a policy specialist of his former employer, and the Microsoft exec reminded Grimmelmann that the company has had a continuing interest in funding academic efforts.
On March 11, Grimmelmann laid out the project in a proposal sent to Microsoft. The amicus brief is one four initiatives the Law School will undertake. The others are a series of white papers, a symposium on the settlement issues, and a website that will act as a hub of activity for those challenging or asking for changes on the settlement. Grimmelmann proposed that Microsoft's contribution to fund these efforts should be $50,000, and he now confirms Microsoft pledged that amount. Though Grimmelmann says other contributors may emerge, currently Microsoft is the sole outside funder of New York Law School's Google Book Settlement Project.
Microsoft says that its behavior should be viewed in the context of similar academic grants over the years. "We are funding this like we fund dozens of law projects," says Tom Rubin, Microsoft's chief counsel for intellectual property strategy. "The issues that are implicated in the settlement are important ones. New York Law School has taken an important position on orphan works and they deserve to be heard."
Rubin says that as with other instances of Microsoft funding of academic projects, the recipients maintain their independence and are free to reach any conclusions. He won't comment on whether Microsoft itself plans to file an objection to the settlement.
It may be a good investment on Microsoft's part, but doesn't the Microsoft money taint New York Law School's efforts? "I'm sure there's a danger in being perceived as compromised," says Grimmelmann. "But I know it's not affecting our work. Microsoft is willing to send us money to do good work with our students and we're happy to take it." (Grimmelmann's own stance on the Google Settlement, first expressed in a blog posting last November, is rather nuanced. He thinks it's a positive development, but wants significant change — generally, ones that restrain Google. He also says that at various times, his positions on issues have been anti-Microsoft as well as anti-Google.)
My conversation with Grimmelmann came just after his session at the East Coast Foo Camp last weekend, a conference run by O’Reilly Media. The name of the session was "Hacking the Google Book Settlement."
Turns out that cleverest hacker here is Microsoft, making an academic grant that may help put some judicial heat on its rival.