Tip of the OOTJ hat to Kathleen Vanden Heuvel for pointing us to a wonderful and powerful analysis of what is wrong with the Google Book Settlement. Professor Pamela Samuelson (the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, as well as a Director of the Berkeley Center for Law & Technology and an advisor to the Samuelson High Technology Law & Public Policy Clinic at Boalt Hall), writes as a guest blogger at Radar O'Reilly.com today, "Legally Speaking: The Dead Souls of the Google Book Settlement."
I love the literary twist she gives her title, playing off the similarity of the name, Google, to the Russian author Gogol. And she ties in the plot line of Gogol's novel, Dead Souls, wherein a schemer tries to leverage the value of dead serf's titles which he bought up since the last census to make himself a wealthy man. Serfs were called souls, hence the title. The character's plot comes apart as word gets out that all his stock of souls are dead... But Prof. Samuelson sees a parallel between Gogol's story and Google's scheme.
A huge component of the Google Book Settlement is the orphan books component. Where the author is dead or cannot be located, and no current owner of the copyrights can be identified, the book in question is an "orphan work." The Settlement creates a Book Rights Registry to collect money from ads viewed for each use of any work, and to distribute the money according to the Settlement agreement. Google keeps some, the BRR keeps some for overhead, and then a bit goes to the copyright owner if they can be identified. In the case of orphan works, however, things get, well, strange. Furthermore, Prof. Samuelson raises the question, how was the Settlement negotiated? There were only a handful of authors or their representatives involved. And those tended not to be the academic sorts who were largely on the shelves of the research libraries scanned for the Google Book Project. These were mystery writers, for instance, and publishers of textbooks. Hmm.
Even more upsetting is the fact that the folks running the Book Rights Registry are Copyright extremists. The head of the Authors Guild, as Prof. Samuelson points out, was the one who led the charge to prevent Amazon from leaving the Kindle set so it would read books aloud. This would have let visually impaired users use the Kindle to access books in a simpler way. But the Authors Guild claimed that it impaired authors rights in their secondary market of books on tape (now on CDs I guess, but I think it may be a Trademarked name). You can see the mindset at work.
I recommend you read this short and accessible article in full. It is terrific and thought provoking. Here is a snippet to lure you in:
If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want.I only hope Judge Denny Chin reads the post!
In reviewing the settlement, the judge who is supposed to consider whether the settlement is “fair” to the classes on whose behalf the lawsuits were brought. He may assume the settlement is fair because money will flow to authors and publishers. But importantly absent from the courtroom will be the orphan book authors who might have qualms about the Authors Guild and AAP as their representatives.
In the short run, the Google Book Search settlement will unquestionably bring about greater access to books collected by major research libraries over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, by the way, get up to $45.5 million in fees for their work on the settlement—more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.
The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.