The agreement between Google and the AAP is of great significance for libraries. It is also very long, written in "legalese", and contains conclusions of a lengthy negotiation without revealing the nature of the discussion. Given that many lawyers were involved, we may never get the back story of this historic settlement, yet it has the potential to change the landscape on rights, digitization, and libraries.
I am basing much of my analysis on the summary of the agreement produced by ARL. This unfortunately means that some errors may be introduced between their summary and my interpretation. I have gone to the original document to check some particulars, such as definitions, but much of that document goes unread for now.
(... or, a summary of the summary)
- The agreement is primarily about books that are presumed to be in copyright but which are no longer in print. In-print books continue to be managed directly by the rights holders, who can make agreements with Google (or anyone else) for uses of those items.
- The agreement has some odd limitations that baffle me: it only covers books published in the US that have been registered with the Copyright Office. It does not include any books published after January 5, 2009 .The settlement does cover non-US books (e.g. Berne countries); I'm still unclear on the statement about registration for US books, but it was cited in the ARL document.
- The agreement trades off Google's liability with payment to rights holders. That is, as long as Google requires payment from users to displays and copies, and passes 2/3 of those monies to the rights holder, Google is exempt from copyright infringement claims by rights owners. So users of the digital files will pay to keep Google legal.
- The agreement does not answer the all-important question of whether scanning for the purposes of searching is an allowed use under copyright law.
- The agreement flaunts the concept of Fair Use by quantifying the amount of an in-copyright book that users can view for free ("20% of the text," "five adjacent pages," but not the final 5% of a fiction book, to keep the endings a surprise.) The ARL document has Google saying that it will not interfere with fair use. I can't find that statement in the actual settlement. These quantities are contractual, and I'm assuming that that technology will not allow users to exert fair use rights, only the contractual agreement.
- Google will sell digital copies of in-copyright books to users, who will have perpetual access to the book online. Some printing will be allowed but all printed pages will have a watermark that identifies the user. (I'm calling this "ratwear," software that rats you out.) Users will be able to make notes on the book's pages, but they will only be able to share those notes with other purchasers of the book. (Thus buying a Google book is like joining a secret reading club.) The settle states that the watermark will identifier either the user, or other information "which could be used to identify the authorized user that printed the material or the access point from which the material was printed." Agreement, p. 47
Key Points Relating to Libraries
This is the hard part for me. Hard in that it really hurts.
- After digitizing books held in libraries, Google will then turn around and become a library vendor, supplying those same books back to libraries under Google's control. Each public library in the US will get a single "terminal" provided (and presumably controlled) by Google that allows users to view (but not copy and paste from) books in the Google database. Some printing is allowed, but there will be a per-page fee charged.
- Libraries and institutions can also subscribe to all or part of the database of out of print books. Access is not perpetual, but limited to the life of the subscription.
- There is verbiage about how users in these institutions can share their "annotations." In other words, if you take notes on your own, obviously those are yours. But if you use the capabilities of the system to make your notes in the system, you cannot share your own notes freely.
Now for the Clincher
... this is the pact with the devil.
- A library can partner with Google for digitization of its collection and get the same release from liability that Google has. The library can keep copies of these digitized books, however, it must follow security standards set by Google and the AAP and must submit its security plan for review and allow yearly auditing. (The security measures are formidable and quite possibly not affordable for all but the wealthiest institutions. There are huge penalties up to millions of dollars for not getting security right.)
- Libraries that make this pact with the devil are thereby allowed to preserve the files, print replacement copies for deteriorating books, and provide access for people with disabilities. Note that all of these uses by libraries are already allowed by copyright law.
- The libraries that make this pact with the devil cannot let their users read the digitized books. Well, they can let them read up to five (5!) pages in any digitized book. Presumably if the library wants to provide other uses it must subscribe to Google's service. Libraries are expressly forbidden from using their copies of the books for interlibrary loan, e-reserves, or in course management systems.
... and if you refuse to negotiate with the devil...
- Current Google library partners who do not choose to become party to this must delete all copies of digitizations of in-copyright works made by the Google project in order to obtain a release from liability. If they choose not to delete the copies, they are on their own in terms of liability for the in-copyright books that Google did digitize (and Google knows exactly which books are involved.)
- Even if the library was only allowing Google to digitize public domain works, those libraries must destroy all of their copies to get release from liability in case they mis-judged the copyright status of one of the those books.
They say that "the devil is in the details." In this case that is not true: the devil is right up front, in the main message. That message is that Google has agreed with the publishers, and is selling out the libraries that is has been working with. The deal that Google and the libraries had was that in exchange for working with Google to digitize books in their collections, the libraries received a copy of the digital file. After that, it was up to the libraries to do the right thing based on their understanding of copyright law. Participating with Google has been an expensive proposition for the libraries in terms of their own staff time and in the development of digital storage facilities. Part of the appeal of working with Google was the assumption that partnering with the search giant gve the entire project clout and provided some protection for the libraries. With Google and the AAP now in cahoots, the libraries must join them or try to stand alone in an unclear legal situation; an unclear situation that Google invited the libraries into in the first place.
This is classic bait and switch. And it is bait and switch with powerful commercial interests against public institutions. There is no question about it...
THIS IS EVIL
Note: I've added more comment and info in the comments area as things pop up. So read on....