Saturday, November 14, 2009

Amended Google/AAP Settlement

The amended settlement has been issued (the best way to see the changes is in the redline version). I will summarize here the changes that I see as having the greatest impact on libraries and on the public. For legal issues, I suggest James Grimmelmann's blog. For business issues, probably the NY Times and Wall Street Journal.

Foreign Works Mostly Excluded

Undoubtedly due to the many complaints from foreign rights holders, the settlement now only includes (oddly enough) US, UK, Australian and Canadian works. This would include, as I interpret it, translations of non-USetc works published in those four countries. This greatly changes the value of the institutional subscription for higher education, as well as the value of the 'research corpus' (essentially a database of the OCR'd texts that researchers can use for computational research).

Since we know that information seekers prefer accessing works online rather than in hard copy, I anticipate that the online service will be very popular. But it will contain almost exclusively these Anglo-American products, a narrow swath of the intellectual output of the planet. As it is, too many Americans are unaware of the world outside of those Anglo-American borders. This will just exacerbate that problem. It could change the content of of education and research. As I've said before, availability is a significant determinant of what intellectual materials people use in their research.

Particular to Libraries

In general, the sections on libraries (both participation and use of the digital copies) remain unchanged. There are a few minor changes, some of which are puzzling.

Public Libraries

The statement about the free access for public libraries has been changed from:
in the case of each Public Library, no more than one terminal per Library Building

in the case of each Public Library, one terminal per Library Building.; provided, however, that the Registry may authorize one or more additional terminals in any Library Building under such further conditions at it may establish, acting in its sole discretion and in furtherance of the interests of all Rightsholders.
So it leaves the options open for giving some public libraries additional (free?) access. Still, there is no information on whether or how public libraries could subscribe in a way that would allow them to fully serve their communities.


The definition of "books" that could be digitized originally included microforms. The word "not" has been added:
hard copy (not including microform)
No idea why, but perhaps a look at the comments will reveal one from UMI or some other party related to microforms.

[Found it: The ProQuest letter states that dissertations should NOT be included as they are controlled through ProQuest's dissertation service. The letter mentions that some dissertations are in microform format, but that today many are available as print-on-demand or online. Although microforms were excluded, p. 327 of the redline document states:
What Material Is Covered?
"Books” include in-copyright written works, such as novels, textbooks, dissertations, and other writings...".
So ProQuest did not get what it asked for.]

OCLC Networks

The original settlement had a strange exception that removed OCLC networks from the definition of "consortium":
"Institutional Consortium” means a group of libraries, companies, institutions or other entities located within the United States that is a member of the International Coalition of Library Consortia with the exception of Online Computer Library Center (OCLC) - affiliated networks.
That exception has been removed. I would love to know why it was there in the first place, but can only assume that one or both of these requests came about because of participation by OCLC in the settlement discussions.

[Note: I discovered that Lyrasis and Nylink filed an objection about this exception, which may be why it was removed. Their analysis was that it had come from OCLC and gave OCLC the ability to manage competition by determining which organizations would be excluded from participating in the business of brokering services for libraries. They assume that OCLC hopes to be in that business itself.]

Download Formats & Course Packs

In the original settlement, the only download format mentioned was PDF. As we know, since then Google has announced that it will provide e-books from the publisher partner content that it carries on GBS. Ebook formats have been added in to the settlement as possible download formats. At the same time, the product line described as:
Custom Publishing - Per-page pricing of Books, or
portions thereof, for course materials, and other forms of custom
publishing for the educational and professional markets
has been removed.


There are complex changes to the treatment of orphan works which I have not tried (yet) to absorb. Those will undoubtedly have some impact on libraries and the public but at the moment I have no thoughts on that.

The settlement now allows rightsholders to place a Creative Commons license on their works. I really don't see a great deal of significance in this, although it does emphasize that by participating in GBS your rights are now governed by contract law rather than copyright law.

And, last, Google admits to some of its own difficulties in bibliographic control when it states that "The inclusion of a work within the Books Database does not, in and of itself, mean that the
work is a Book within the meaning of Section 1.19 (Book)." In other words: we threw a whole bunch of bib records into a database; don't assume anything from it.

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