Pamela Samuelson: “Legally Speaking: The Dead Souls of the Google Booksearch Settlement”

Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, has posted an eprint of "Legally Speaking: The Dead Souls of the Google Booksearch Settlement" on O'Reilly Radar.

Here's an excerpt:

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the "dead souls" to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

(Note: See the Wikipedia entry on Nikolai Gogol's Dead Souls.)

“The Google Book Search Settlement: A New Orphan-Works Monopoly?”

Randal C. Picker of the University of Chicago Law School has self-archived "The Google Book Search Settlement: A New Orphan-Works Monopoly?" in SSRN.

Here's an excerpt:

The settlement agreement is exceeding complex but I have focused on three issues that raise antitrust and competition policy concerns. First, the agreement calls for Google to act as agent for rights holders in setting the price of online access to consumers. Google is tasked with developing a pricing algorithm that will maximize revenues for each of those works. Direct competition among rights holders would push prices towards some measure of costs and would not be designed to maximize revenues. As I think that level of direct coordination of prices is unlikely to mimic what would result in competition, I have real doubts about whether the consumer access pricing provision would survive a challenge under Section 1 of the Sherman Act.

Second, and much more centrally to the settlement agreement, the opt out class action will make it possible for Google to include orphan works in its book search service. Orphan works are works as to which the rightsholder can't be identified or found. That means that a firm like Google can't contract with an orphan holder directly to include his or her work in the service and that would result in large numbers of missing works. The opt out mechanism—which shifts the default from copyright's usual out to the class action's in—brings these works into the settlement. . . .

Third, there is a risk that approval by the court of the settlement could cause antitrust immunities to attach to the arrangements created by the settlement agreement. As it is highly unlikely that the fairness hearing will undertake a meaningful antitrust analysis of those arrangements, if the district court approves the settlement, the court should include a clause—call this a no Noerr clause—in the order approving the settlement providing that no antitrust immunities attach from the court's approval.

Sony’s eBook Store to Offer Over a Half-Million Public Domain Books from Google

Sony's eBook store will offer over a half-million public domain e-books from Google.

Here's an excerpt from the press release:

At Sony’s eBook store (, a button on the front page leads to the books from Google, which people can transfer to their PRS-505 or PRS-700 Reader at no cost. The process is seamless for Reader owners who have an account at the store. Those new to the store will need to set up an account and download Sony’s free eBook Library software. To start, people can access more than a half-million public domain books from Google, boosting the available titles from the eBook Store to more than 600,000. . . .

Books from Google will feature an extensive list of traditional favorites, including "The Awakening," "A Connecticut Yankee in King Arthur’s Court," and "Black Beauty," as well as a number of items that can be more difficult for people to access. For example, literature lovers can find and read The Letters of Jane Austen in addition to "Sense and Sensibility" and "Emma." Also included are a number of titles in French, German, Italian, Spanish and other languages. People can search the full text of the collection, or they can browse by subject, author, or featured titles.

Peter Brantley on Orphan Works and the Google Book Search Settlement

In "The Orphan Monopoly," Peter Brantley, Executive Director for the Digital Library Federation, examines issues related to orphan works and the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

There is a lot to ponder: This is arguably a massive re-writing of copyright for books without any legislative input; Marybeth Peters (MBP), the U.S. Registrar of Copyrights, observed that the settlement essentially proposes a private agreement for compulsory licensing between a large class of IP holders and world’s largest search engine. The potential scope and policy ramifications are significant. MBP mentioned that there might be treaty implications under international conventions. And despite that, one of the most shocking of her statements was that the Copyright Office has not received a single inquiry from any of the 535 elected representatives of the people of the United States. Not. One.

“Google & Books: An Exchange”

In "Google & Books: An Exchange," Paul N. Courant, Ann Kjellberg, J. D. McClatchy, Edward Mendelson, Margo Viscusi, Tappan Wilder et al. have commented on Robert Darnton's "Google & the Future of Books," and Darnton has replied.

Here's an excerpt:

[Darnton] Monopolies tend to charge monopoly prices. I agree that the parallel between the pricing of digital and periodical materials isn't perfect, but it is instructive. If the readers of a library become so attached to Google's database that they cannot do without it, the library will find it extremely difficult to resist stiff increases in the price for subscribing to it. As happened when the publishers of periodicals forced up their prices, the library may feel compelled to cover the increased cost by buying fewer books. Exorbitant pricing for Google's service could produce the same effect as the skyrocketing of periodical prices: reduced acquisitions of monographs, a further decline in monograph publishing by university presses, and fewer opportunities for young scholars to publish their research and get ahead in their careers.

The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?

The Congressional Research Service has released The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?. (Thanks to ResourceShelf.)

Here's an excerpt:

The Google Book Search Library Project, announced in December 2004, raised important questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display "snippets" of print books in the collections of five major libraries without the permission of the books' copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google's alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google's proposed uses were not infringing because Google allowed rights holders to "opt out" of having their books digitized or indexed. They also argued that, even if Google's proposed uses were infringing, they constituted fair uses under copyright law.

The arguments of the parties and their supporters highlighted several questions of first impression. First, does an entity conducting an unauthorized digitization and indexing project avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses?

On October 28, 2008, Google, authors, and publishers announced a proposed settlement, which, if approved by the court, could leave these and related questions unanswered. However, although a court granted preliminary approval to the settlement on November 17, 2008, final approval is still pending. Until final approval is granted, any rights holder belonging to the proposed settlement class—which includes "all persons having copyright interests in books" in the United States—could object to the agreement. The court could also reject the agreement as unfair, unreasonable, or inadequate. Moreover, even assuming final court approval, future cases may raise similar questions about infringing reproduction and fair use.

ACRL, ALA, and ARL Will File Google Book Search Settlement Amicus Brief

The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries will file an amicus brief authored by Jonathan Band about the Google Book Search Settlement.

Read more about it at "Library Organizations to File Amicus Brief in Google Book Search Settlement."

Walt Crawford on the Google Books Search Settlement

The latest issue of Cites & Insights: Crawford at Large is dedicated to an in-depth (30-page) look at the Google Book Search Copyright Class Action Settlement.

Here's an excerpt:

The agreement could be a lot worse. The outcome could also be a lot better. I'm sure Google would agree with both statements, as it finds itself in businesses where it has neither expertise nor much chance of advertising-level profits. At the same time, the copyright maximalists didn't quite win this round. We'll almost certainly get somewhat better access to several million OP books—and will have to hope (and work to see) that the price (monetary and otherwise) isn't too high.

ALA, ARL, and ACRL Meeting on Google Book Search Settlement

In "ALA, ARL, ACRL Host Meeting of Experts to Discuss Google Book Search Settlement," District Dispatch reports on the numerous questions raised about the Google Book Search Settlement in a recent meeting on that topic.

Here's an excerpt :

  • Access. What will the settlement mean for protecting the public’s ability to access and use digital resources from the nation’s libraries? Since the Book Rights Registry established as a condition of the settlement will represent the interests of the authors and publishers, who will represent the interests of libraries and the public? What are the financial implications of participation? Could the settlement create a monopoly that threatens the mission of libraries by raising the prices to an unreasonable level that limits public access?
  • Intellectual freedom. Are there academic freedom issues to consider? What are the implications of Google’s ability to remove works at its discretion? Will there be notification of their removal? What are the issues regarding possible access and use restrictions on the Research Corpus?
  • Equitable treatment. Since not all libraries are addressed in the settlement, what impact will it have on the diverse landscape of libraries? In light of tight economic times, will this negatively affect libraries with lean budgets? Will it expand the digital divide?
  • Terms of use. Under the terms of the agreement, will library users continue to enjoy the same rights to information under copyright and other laws? Will the settlement impact the legal discussions and interpretations of library exceptions that allow for library lending, limited copying and preservation?

California Digital Library Update on Mass Digitization Activities

In "Mass Digitization Projects Update," Heather Christenson, the California Digital Library's Mass Digitization Project Manager, overviews UC's 2008 mass digitization efforts.

Here's an excerpt:

2008 was a busy year for our UC Libraries’ book digitization activities. We continue digitizing tens of thousands of books from our print collections from many libraries across UC. In the latter half of 2008, our mass digitization projects have responded to significant changes and developments in the scholarly and commercial world: Microsoft decided to end its Live Search Books program which funded a portion of UC book digitization, Google announced a Settlement with authors and publishers, and UC allied with the University of Michigan, Indiana University, and the Committee on Institutional Cooperation, or CIC (a consortium of Big Ten Plus universities in the Midwest) to anchor the new HathiTrust digital repository. Throughout, we have continued to steadily digitize books in partnership with the Internet Archive and Google.

“How to Improve the Google Book Search Settlement”

James Grimmelmann, Associate Professor at New York Law School, has made available "How to Improve the Google Book Search Settlement" in the Berkeley Electronic Press' Selected Works.

Here's the abstract:

The proposed settlement in the Google Book Search case should be approved with strings attached. The project will be immensely good for society, and the proposed deal is a fair one for Google, for authors, and for publishers. The public interest demands, however, that the settlement be modified first. It creates two new entities—the Books Rights Registry Leviathan and the Google Book Search Behemoth—with dangerously concentrated power over the publishing industry. Left unchecked, they could trample on consumers in any number of ways. We the public have a right to demand that those entities be subject to healthy, pro-competitive oversight, and so we should.

"Google & the Future of Books"

Robert Darnton, Carl H. Pforzheimer University Professor at Harvard University, has published "Google & the Future of Books" in the The New York Review of Books.

Here's an excerpt:

As an unintended consequence [of the Google Book Settlement], Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors. Microsoft dropped its major program to digitize books several months ago, and other enterprises like the Open Knowledge Commons (formerly the Open Content Alliance) and the Internet Archive are minute and ineffective in comparison with Google. Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. If the settlement is upheld by the court, only Google will be protected from copyright liability.

ARL Releases "Establish a Universal, Open Library or Digital Data Commons"

The Association of Research Libraries has released "Establish a Universal, Open Library or Digital Data Commons."

Here's an excerpt:

Deepening our understanding of our Nation and its culture and history, advancing scientific discovery, tackling environmental, economic issues and more, all depend on scientists, researchers, students, scholars, and members of the public accessing our Nation's cultural, historical and scientific assets. A large-scale initiative to digitize and preserve the public domain collections of library, governmental, and cultural memory organizations will support research, teaching and learning at all levels, will help stem the current economic crisis by equipping and employing workers in every state with 21st Century skills, and it will lay a foundation for innovation and national competitiveness in the decades ahead. The goal is to establish a universal, open library or a digital data commons.

Library of Congress to Scan 25,000th Book in Digitizing American Imprints Program

The Library of Congress will scan the 25,000th brittle book in its Digitizing American Imprints Program, which is supported by a $2 million grant from the Alfred P. Sloan Foundation.

Here's an excerpt from the press release:

The Library, which has contracted with the Internet Archive for digitization services, is combining its efforts with other libraries as part of the open content movement. The movement, which includes over 100 libraries, universities and cultural institutions, aims to digitize and make freely available public-domain books in a wide variety of subject areas.

Books scanned in this pilot project come primarily from the Library’s local history and genealogy sections of the General Collections. For many of these titles, only a few copies exist anywhere in the world, and a reader would need to travel to Washington to view the Library’s copy. . . .

All scanning operations are housed in the Library’s John Adams Building on Capitol Hill. Internet Archive staff work two shifts each day on 10 "Scribe" scanning stations. The operation can digitize up to 1,000 volumes each week. Shortly after scanning is complete, the books are available online at Books can be read online or downloaded for more intensive study. The Library of Congress is actively working with the Internet Archive on the development of a full-featured, open-source page turner. A beta version, called the Flip Book, is currently available on the Internet Archive site.

“Editorial: Google Deal or Rip-Off?”

In "Editorial: Google Deal or Rip-Off?," Francine Fialkoff, Library Journal Editor-in-Chief, takes a hard look at the Google-Association of American Publishers/Authors Guild copyright settlement.

Here's an excerpt:

Clearly, the public had little standing in the negotiations that led to the recent agreement in the class-action lawsuit against Google for scanning books from library shelves. . . . Well, the suit was never about the public interest but about corporate interests, and librarians did not have much power at the bargaining table, no matter how hard those consulted pushed. While there are many provisions in the document that specify what libraries can and can't do and portend greater access, ultimately, it is the restrictions that scream out at us from the miasma of details.

Other perspectives can be found in my recently updated Google Book Search Bibliography, Version 3.

Google Book Search Bibliography, Version 3

The Google Book Search Bibliography, Version 3 is now available.

This bibliography presents selected English-language articles and other works that are useful in understanding Google Book Search. It primarily focuses on the evolution of Google Book Search and the legal, library, and social issues associated with it. Where possible, links are provided to works that are freely available on the Internet, including e-prints in disciplinary archives and institutional repositories. Note that e-prints and published articles may not be identical.