[Libs-Or] Summary of the Google Book Settlement Session at ALA Midwinter Conference

[Diedre Conkling]

I thought this information might be of interest to some of you:
http://www.wo.ala.org/districtdispatch/?p=1686

---------------
 Summary of the Google Book Settlement Session at ALA Midwinter Conference
<http://www.wo.ala.org/districtdispatch/?p=1686> January 29th, 2009 |
Category: Copyright <http://www.wo.ala.org/districtdispatch/?cat=9>,
Events<http://www.wo.ala.org/districtdispatch/?cat=7>,
OITP <http://www.wo.ala.org/districtdispatch/?cat=5>

Reproduced here via OITP's Google Books Settlement site<http://wo.ala.org/gbs>
.

ALA's Committee on Legislation and Office for Information Technology Policy
hosted a panel session Saturday at the ALA Midwinter Conference in Denver.
The session was called "Google Book Settlement: What's In It For
Libraries,"   and aimed to educate librarians on the initial terms of the
settlement, hear from leading a few leading library and legal experts, and
offer time for audience members to pose questions to the panel participants.

As mentioned in an earlier post, panelists included Dan Clancy, Engineering
Director for the Google Book Search Project, Paul Courant, Dean of Libraries
at the University of Michigan, Karen Coyle, Digital Librarian and
Consultant, and Laura Quilter, Librarian and Attorney at Law.

Dan kicked off the panel by giving a brief overview of the main points of
the settlement. He stressed that the agreement is a compromise, and settles
the class action lawsuit between Google, the Association of American
Publishers, and the Authors Guild. The explained that the settlement class
includes anyone with copyright interest in a book before published before
January 5, 2009.

[image: dan-clancy]<http://wo.ala.org/gbs/wp-content/uploads/2009/01/dan-clancy.jpg>

Dan said that the settlement does not affect books in the public domain, and
does not include journals, magazines, newspapers, and images if the
rightsholder of the image in a book is different than the rightsholder of
the book itself. The settlement also applies only to rightsholders in the
United States.

Mr. Clancy explained that the settlement allows Google to continue to scan,
index, and otherwise use non-display versions of books. This corresponds
with the default status today for in print books. Currently, Google's scan
index the contents of books, allowing users to search the full text of
works, but only displaying up to 3 snippets of text per work (a snippet is
considered a "non-display" use).

Under the proposed settlement, the default status for out of print (also
called "not commercially available") will be that access models are turned
on–rightsholders of out of print book can opt out if they wish, but the
default will be to include their materials under the settlement provisions.
Rightsholders of in print books need to opt in (this is how it's always
been).

Dan explained four models of access under the proposed Google Book
settlement. First, there will be the online consumer purchase, where
individuals can create an account with Google to purchase perpetual access
to the full text of an individual in copyright, out of print book. He called
this service the "digital locker." Second, he said that all users will be
able to preview up to 20% of a book (more or less, although there are some
stipulations to this–see "A Guide for the Perplexed for more detail…). He
said that Google will also provide links to where users can find the
physical book in the library, or purchase the physical book online (such as
from Amazon). Third, Dan explained briefly the concept of the "institutional
subscription database" (ISD), which will include essentially the entire
database of in copyright, out of print books. Universities will be able to
purchase access to the full or subset portions of the ISD, depending upon
the number of FTE equivalent students there, and those users will be able to
access the ISD remotely. These types of users will be able to view the full
text of the materials in the ISD, print 20 pages with a single command, and
copy/paste 4 pages in single command. There was talk that the ISD should be
able to be integrated into the ILS system within a university, making it
easier for students to access, and potentially connect it with other Google
services used by students and faculty. Fourth, Dan laid out the intial
provisions for the "public access service" (PAS). He said that for those
libraries that choose not to subscribe to the ISD (public or university),
Google will provide one terminal per building which allows for full access
to the contents of the ISD. Although users will be charged a per page
printing fee, Dan said that Google will pay for the printing costs for 5
years or up to $3 million.

Mr. Clancy touched upon the various levels which libraries may participate
under the Google Book settlement. Fully participating libraries will receive
what's called a "Library Digital Copy" (LDC), which comes with certain
restrictions and provides for certain authorizations of use. For example,
under the fully participating library agreement, Google can return a digital
copy of a book scan to the participating library (such as University of
Michigan). The library will be absolved of copyright infringement liability,
but must follow particular security provisions. These libraries may also
receive book scans from other participating libraries under certain
conditions (see the agreement summary for more details).

Dan said that Google will set up a process to handle public domain books. He
admitted that there are scaling problems in determining whether a book is in
the public domain.

Paul Courant said he represents a large academic library (University of
Michigan), and feels that it is the duty of his institution to take social
responsibility for some pieces of the world's cultural collection that
otherwise might go away. He questioned, "if we hadn't had the settlement,
where would we be now?"Paul referenced the recent article by Bob Darnton, in
which Darnton said that if universities and libraries and other
organizations would have just stuck together and organized better, we could
have had a large scale digitization project without private help. Courant
said that this is what everyone would've liked, but obviously not what has
happened.

[image: paul-courant]<http://wo.ala.org/gbs/wp-content/uploads/2009/01/paul-courant.jpg>

Paul said that if we never had the settlement, we would've just had snippets
and indexing, and not ability to actually read the books. He said that if we
never had the settlement, libraries may have tried to negotiate, publisher
by publisher, the right to display works. However, he assumed that under
this case, the negotiations wouldn't have gone well, and would've probably
required libraries to pay money to the publishers for these display rights.

Before Google began its book scanning project, Paul said that this utopian
vision of a large, noncommercial digitization initiative had the likeliness
of success of 1 in 100,000. However, with Google at the front in the book
digitization business now, Paul admitted that the same vision is probably
now 1 in 1 million. Courant claimed that the settlement agreement
potentially weakens fair use for libraries, since the settlement in effect
creates a market for old works, and where there is a market courts are less
amenable to fair uses. He said that even though the settlement claims that
fair uses are not affected, on the ground, it really is.

Courant said there are many gains for libraries. First, he said that the
settlement solves the negotiation problem highlighted above. He said that
while class action settlements are generally not very good at solving large
coordination problems, it's what we got and better than libraries
negotiating with publishers on a case by case basis. Second, Paul said, for
some academic libraries, the settlement provides for a huge increase in the
accessible collection. For example, Michigan gets to use materials from
Stanford's collection. For public libraries, he said, the nerdy kid who
wants to read 40 year old monographs gets to do it. Third, Courant said that
while Google scans are not at archival/preservation standards, there are
more usable in more and more cases.

The biggest question Courant wanted to know is "what's the pricing going to
be?" He said that if the pricing of the ISD is going to be like journal
pricing, then it's not going to work for most libraries. But, Paul said he
thinks the price is going to be reasonable, if only for the fact that this
class of books are out of print for a reason! He said most books go out of
print the year they go into print. Courant said that there is a difference
between the way libraries subscribe to scientific journals and the way
libraries may subscribe to the ISD. The current scientific literature
journals have a monopoly on recent stuff, and libraries (at least academic
libraries) will continue to feel compelled to subscribe. Courant said
libraries like the University of Michigan library has their hands tied
here–they'll subscribe because faculty, researchers, and students demand it.
But with the price of the ISD, he claims that if the price is too high,
consumers just won't buy it.

Finally, Courant said that we're no worse off than we were with the physical
books–we just have a richer finding tool. He said that users can still get
the physical book from the library or put it on interloan. He claimed that
selling things at high prices has not been what Google has traditionally
done, so doesn't think they'll start now with the price of the ISD. He
concluded that there is an ongoing sense of mission at the library that we
want the world to read our stuff, but right now we don't have any other good
ways to showing it to you. The Google Book settlement provisions may help
with this.

Karen Coyle began by stating that she was not involved in the settlement
negotiations, and said that those involved in the agreement bound by
nondisclosure agreement (Clancy said this is normally required by the court
of members of class action settlements). Karen said she was posing questions
from the point of view of libraries that are not signing an agreement as
either a participating or cooperating library.

[image: karen-coyle]<http://wo.ala.org/gbs/wp-content/uploads/2009/01/karen-coyle.jpg>

Coyle clarified that the settlement agreement is a contract between Google
and the AAP, and that public libraries are bound by nothing in the
settlement. She outlined many of the values that are central to libraries in
their efforts to serve library users. Coyle posed several fundamental
questions libraries and librarians need to ask about the settlement
provisions, including:

   - Does this product serve users?
   - Do library users want to read these books online?
   - What are the collection implications for libraries going to look like
   3-5 years down the road?
   - What is the quality of the scans going to be? (she said there may be
   some room for librarians/archivists to help educate Google on this)
   - What are the privacy implications for users of the product?
   - Will Google serve ads within the product?
   - Will the settlement properly address accessibility concerns,
   specifically ADA?
   - What are the implications for First Amendment rights and and
   intellectual freedom, especially since Google and the publishers have the
   ability to censor or remove controversial books?
   - What are the ways Google and the publishers will maintain transparency
   down the road, especially at public institutions?
   - Since the product is maintained by a private entity, is the product
   sustainable? Libraries have been around for thousands of years and have been
   experts at preservation. Can the book scans be placed into escrow in case
   Google goes out of business?
   - What are the associated costs to public libraries for the public access
   service?
   - Do the public access terminals represent a product placement for the
   members of the settlement (Google and publishers)?
   - Would Google drop this product if it is not profitable to them?
   - Will the settlement agreement inhibit libraries from innovating or
   participating in creating new technologies an services with their own data?

See more questions from
Karen<http://kcoyle.blogspot.com/2009/01/start-at-questions-list.html>and
her
remarks<http://kcoyle.blogspot.com/2009/01/google-whats-in-it-for-libraries.html>
.

Laura Quilter, like others, said she felt "wistful" that there would have
been a good chance that Google would've won the copyright infringement
lawsuit brought against it by the AAP and the Authors Guild. She felt there
was a strong case for fair use, and that the settlement represents a
compromise on behalf of Google with respect to a "permissions culture." She
said that librarians have been trying to push back on this permissions
culture.

[image: laura-quilter]<http://wo.ala.org/gbs/wp-content/uploads/2009/01/laura-quilter.jpg>

Quilter questioned how the settlement is going to shape the market. While
she agreed with Courant that we're definitely a step ahead from where we
would have been without a settlement, we must continue to explore where does
that trail leads. She said that while librarians are among Google's biggest
fans, we need to retain our representation and autonomy without the need to
rely on a private entity such as Google.

Laura said that the terms of the settlement are significantly different from
the old scanning agreements that Google had with universities. In fact, she
said, the old deal might actually have provided more rights to libraries
than the new agreement. Under the new agreement, there is no ability for
customized deals with libraries beyond the specific participation levels set
out by Google and the publishers in the settlement details.

Quilter also raised several questions about the settlement, including the
implications on Section 108 rights for libraries or archives to make
reproductions of materials for their users. She also questioned the various
ways library services may be encumbered by the settlement, including certain
bans on interlibrary loan lending, restrictions on using the scanned
materials in university courses, and restrictions on off site access to the
books database. Quilter, like others, challenged the public access service
provision for public libraries, which sets aside a single workstation for
access to the ISD. She said that this access is inadequate for all but the
smallest libraries.

Another issue brought up by Laura is that school libraries are left out
entirely from the agreement. She also said that there may be some
intellectual freedom issues–Google is not subject to information
transparency regulations required of public libraries by some state
statutes. Quilter again raised the issue of user privacy in relation to the
provisions of the settlement, including the ability of Google to record what
books users read, which pages get read, how long users spend on an
individual page, and more. She contrasted this to the strong privacy
protections that public libraries assure their users (Clancy said Google had
not thought about this, but was not really interested in this type of data
collection).

If Google may remove books for editorial reasons, Quilter advocated for
stronger guarantees about what this will actually mean in practice. She also
questioned the DRM on the books in the database, and said that users would
be able to do what they want with the materials that they purchase. For
example, the scans of the books cannot be ported to mobile devices like the
Kindle.

Laura agreed with Coyle that if perpetual access is indeed promised with the
consumer purchase, we need to make sure this is guaranteed by placing copies
of the book scans in escrow, potentially in the care of the library
community. Finally, Quilter questioned whether libraries can leverage their
market power in order to make changes to the proposed settlement.

We'll post more from the Q&A in a later post.


-- 
Diedre Conkling
diedre08 at gmail.com
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