The Google Book Project & Settlement Discussion at Boston Public Library

I went to the program hosted at Boston Public Library last night, titled, “Expanding Access to Books: Implications of the Google Books Settlement Agreement.

Speakers:

* Daniel Clancy, Engineering Director, Google Books (bio here)
* John Palfrey, Henry N. Ess III Professor of Law and Vice Dean for Library and Information Resources, Harvard Law School (bio here)
* Ann Wolpert, Director of Libraries, Massachusetts Institute of Technology (bio here)
* Hal Abelson, Class of 1922 Professor of Computer Science and Engineering, Massachusetts Institute of Technology (bio and more here)

Moderated by Maura Marx, (brief profile here) Executive Director, Open Knowledge Commons (which sprang out of the Open Content Alliance, see OKC’s blog here http://blog.okfn.org/2007/10/23/the-open-definition-and-creative-commons/ and its Facebook page here http://www.facebook.com/pages/Open-Knowledge-Commons/51161711056 ), (Ms. Marx is also a librarian by training, and formerly worked at the Boston Public Library).

From the original announcement:

What:
Google Book Search is an ambitious project to digitize the world's books. Six years, many million works, and two U.S. lawsuits later, the project is now set to change dramatically. Google has reached a settlement agreement with authors and publishers that, if approved by the court, will have sweeping implications for writers, readers, scholars, librarians, and the public at large.

Join Boston Public Library and our panel of speakers for an explanation and discussion of the settlement. In addition to engaging with one another to dig deeply into the agreement's impact, the panel will have an open Q&A with attendees.

Betsy’s take:

Well, they did not dig deeply; there was not time. They did debate back and forth, with Dan Clancy manfully lobbing back the objections that the other speakers produced against the Google Books Project and the proposed Settlement, which is still pending. But because it was limited to one and a half hours, and because there were 4 speakers, and the audience, while fairly informed, was not all lawyers, the level of discourse was superficial. There were some excellent questions and points raised in a few questions from the audience. It could have been a few day seminar and still not have been enough time for the speakers to really unload. These were very well-qualified speakers who knew a lot and had strong opinions. It was frustrating to watch them cut themselves off or have to hold themselves back because there was not time.

It was a notably civil discussion, with the various speakers giving Google high marks for standing up to pressure from censors, for instance, and recognizing Google as generally being well-intentioned at the present moment. Nobody was willing to say that Google and the Authors Guild and Publishers were in collusion in working out the Settlement agreement, although one attorney in the audience raised that issue as something that should be considered in every class action settlement – not that there was collusion from the beginning, but that the parties to the settlement at some point began to see that the arrangements of the Settlement could benefit all of them, and negotiated them for their mutual benefits, with no party in the room to speak for the public interest. He was speaking of the arrangements of the Books Registry, which appears at page 65 of the proposed Settlement Agreement.

The Registry sounds innocuous enough. It is to be set up as a not-for-profit organization to create and maintain a database on ownership for authors and publishers; to locate rightsholders to receive payments – especially problematic for the body of books out of print, but still under copyright whose copyright holder is either in question or has not come forward to claim the copyright. The registry will hold payments made to Google Book Project from users of such books for five years. Some of the payment will be used to search for the copyright holder. If the copyright holder is found, there is a formula for sharing the payments. But if the copyright holder cannot be found, what happens next is very disturbing.

(1) first, to defray reasonable and necessary operational expenses of the Registry that are related to its performance, on behalf of the Rightsholders, of the functions described in Section 6.1 (Functions) and, as determined by the Board of Directors of the Registry in the exercise of its fiduciary duties, maintain reserves for such expenses on a proportional revenue basis with respect to revenue from licensees of the Registry other than Google, (2) then, any remaining Unclaimed Funds will be paid on a proportional basis to the Registered Rightsholders until all such Rightsholders of a Book have received, in the aggregate, together with all
amounts paid to such Rightsholders under Section 4.5(a) (Obligation to Pay Revenue Share), seventy percent (70%) of the Gross Revenues received by Google for such Book, and (3) then, for any Unclaimed Funds remaining thereafter, to not-for-profit entities described in Section 510(c)(3) of the Internal Revenue Code chosen by the Registry after consultation with Google and, acting through the Designated Representative, the Participating Libraries and the Cooperating Libraries. The Registry shall choose not-for-profit entities described in Section 501(c)(3) of the Internal Revenue Code that directly or indirectly benefit the Rightsholders and the reading public, and will include entities that advance literacy, freedom of expression, and/or education, and, for avoidance of doubt, will not include the Authors Guild, the Association of American Publishers or other trade organizations. “Gross Revenues” means all of the revenues received by Google from the Revenue Models identified in this Section 6.3(a) (Unclaimed Funds), and only such Revenue Models.

It is very nice that they will send the remnants to not-for-profit entities after reimbursing however much the Registry manages to spend first, maintaining a nice little reserve for Registry expenses, and then topping up the payments for the registered rightsholders. The point that several speakers made was that, using images donated by libraries that were partially underwritten by taxpayers (either as tax exempt educational private institutions or some landgrant universities were involved), Google monetized a previously near worthless resource – these out-of-print books. (Admittedly by adding value, but keep in mind that some of the value was added with money and staff assistance from the participating libraries). The attorney who commented on the issue of collusion finished his comments by quipping, “What do you call something that is not your cheese? ... Not your cheese!” Several other speakers clarified this point; they were bothered by the fact that there was no voice for the public interest in setting up what essentially puts a nice new stream of revenue in place for the Authors Guild to manage. And the Settlement gives them an incentive to spend as much as they can.

Besides this, the major points:
* The pending settlement creates a situation where it is very unlikely that a competitor to Google will create a similar digital library, leaving Google with a monopoly. Libraries have had a very bad history with monopoly pricing – Ann Wolpert from MIT gave the audience the example of the American Chemical Society, a not-for-profit organization that has a monopoly in publishing several important science journals. She said that MIT spends $3million a year for that single publisher’s subscriptions because it charges such high prices to underwrite its various organizational activities;

* Google Books, at this point is offering either by-the-item pricing or subscriptions for libraries, but has offered no firm prices for either. Dan Clancy was only willing to talk in generalities about “market pricing models,” and Ann Wolpert was very fierce in coming back at him in reply about library experiences with vendor/publisher abuses of such things. At the end of the discussion, John Palfrey made an excellent comment that Google is dropping its Google Books Project on libraries in the middle of a perfect storm for us: we have seen our budgets slashed in recent years at the same time that publishers and vendors have been raising prices well beyond the consumer price index, and our patrons are relying more heavily on us, demanding more services and databases than ever before. Palfrey called for librarians to act for once, rather than simply react, to get in front of events and shape them. He commented that librarians are becoming more important than ever and need to recognize it and take charge.

I will post more tomorrow or another day, soon! There is more. This is just such a long post already!