Resource review #7: The amended settlement & objections

Band, J. (November 23, 2009). A Guide for the Perplexed Part III: The Amended Settlement Agreement, American Library Association, Association of College and Research Libraries, and Association of Research Libraries. Retrieved from http://www.arl.org/bm~doc/guide_for_the_perplexed_part3_final.pdf

Grimmelmann, J. (November 23, 2009). James Grimmelmann on The Google Settlement: what’s right, what’s wrong, what’s left to do, Publisher’s Weekly. Retrieved from http://www.publishersweekly.com/article/CA6708106.html

In cooperation with the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries, Jonathan Band has published several "[Guides] for the Perplexed," which outline the changes made in various versions of the Google Books Settlement, with a focus on the implications for libraries. I highly recommend these guides, as they briefly and clearly explain concepts in other contexts can seem kind of nebulous. I'll summarize his most recent summary of the Amended Settlement Agreement (ASA):

1. In response to complaints made by foreign rightsholders of books, the ASA does not apply to these books (with a few exceptions). This means that the great majority of books published elsewhere will not be available in full-text. This is a lot of books, possibly half of the books Google has digitized so far. Google will keep scanning these kinds of books, and will attempt to get permission from rightsholders to provide full-text access. Not only does this remove a huge quanitity of books from Google's collection, it also removes the great majority of plaintiffs from "the plaintiff class" in the settlement.
2. OCLC is now included among institutions "that can receive benefits under the settlement."
3. The ASA extends the time in which rightsholders can "request the removal" of books.
4. Changes to the Book Rights Registry set up by the ASA:
-The Book Rights Registry will have "the purely discretionary" ability to make more than one free public access terminal available at public libraries.
-The BRR will no longer be permitted to use unclaimed funds resulting from the sale of orphan works for operating expenses. These will now be given to charity. Up to 25% of these funds can be used to search for rightsholders of unclaimed works.
-An Unclaimed Works Fiduciary will be selected by the BRR (with the court's approval) to "[represent] the interests of the rightsholders of the unclaimed works."
-The BRR will protect the right of rightsholders to distribute their works through Creative Commons licensing, or other alternative licenses.
5. The ASA removes a few clauses that give Google favored treatment over third parties providing similar services.
6. Google waives its right to antitrust immunity -- apparently "under the Noerr-Pennington doctrine, if an activity receives government approval, it cannot form the basis of antitrust liability." This means that the Department of Justice now has time to see how things play out before determining if Google Books should actually be the target of an antitrust investigation. 

James Grimmelmann is a professor at New York Law School who has written extensively about Google Books (other articles are available here). He is also responsible for Public-Interest Book Search Initiative, which is in turn responsible for (as far as I'm concerned) the best and most comprehensive resource about Google Books, the Public Index. The Public Index provides access to the settlement documents and to related legal documents. Users can annotate the settlement. Additionally, the Public Index links to a wealth of articles on the subject, written from a legal perspective or for a wider audience.

Grimmelmann's most recent general audience article on the subject discusses the ASA and identifies positive changes and areas that remain problematic. The new settlement, as he sees it, consists of "one big feature cut and a bunch of small bug fixes" (the big feature cut being the exclusion of books with foreign rightsholders). Grimmelmann concludes that while the changes to the settlement are mostly positive, the bigger issues are unchanged. Or as he put it more eloquently, "the dark heart of the deal remains: Google will still have effectively exclusive access to unclaimed books." According to Grimmelmann, the issue of antitrust is unresolved. In addition, the opt-out feature of the settlement threatens to set what Grimmelmann calls " a bad precedent for future class actions." He explains: "the plaintiffs aren't just giving up the right to sue Google for scanning their books; they're also being shanghaied into a complicated commercial deal that includes a controversial allocation of electronic book rights and requires them to give up the right in the future to sue Google for plenty of things it hasn't even contemplated doing yet." Because of this, Grimmelmann argues that the court should reflect not only on the fairness of the proposed settlement, but also on the implications for future class action cases.

I've been trying to focus on resources that present perspectives on the potential library use of Google Book as a tool, without any of the legal and ethical arguments for and against. These kinds of articles are somewhat difficult to locate, because (understandably) it's difficult to write anything about Google Books without addressing its legal implications. It's been easy to dismiss a lot of the arguments librarians have made against Google Books--for example, the problem of poor scanning quality and metadata--because the project provides such unprecedented access to such a massive quantity of materials. However, at the core of the project is a massive trade-off: we have unprecedented access to these materials, but other similar vendors have their access to these materials severely curtailed (As Grimmelmann puts it: "A competitor, however, would need to get individual permission [to sell these works] first or be sued into oblivion. That's hard enough in general, and for orphan books it's impossible. There's no one to ask. The class action opens a door for Google, but leaves it closed for everyone else"). Without competition, its possible that the costs to use Google Books will rise dramatically, again limiting access to the materials they've digitized. Grimmelmann describes the possible implications: "Will it drive libraries to eliminate their print collections and become dependent on Google's institutional subscription, only to see its price rise uncontrollably? Will the FBI force Google to turn over its lists of who's been reading the Qur'an? If these kinds of broad-reaching policy decisions were being made by Congress, the legislative process would in theory take everyone's interests into account. But in a settlement negotiated by a handful of lawyers, the danger is always that the “public interest” means whatever they say it does."

Grimmelmann's Public-Interest Book Search Initiative exists for the purposes of encouraging the public to discuss and evaluate the settlement. In that sense, the project attempts to allow the public to reflect on the real meaning of "public interest." As such, the materials provided in the Public Index and the guides written by Jonathan Band are a valuable resource for librarians concerned about the Google Books Settlement's effects on public access to information.