One of these revelatory pieces is a blog post by the University of California's Ivy Anderson. Anderson has been involved in the negotiations with Google probably from the very beginning of UC's involvement. Her post attempts to counter the criticism of the settlement as well as many fears that have been expressed, with an emphasis on academia and academic libraries. For example, Anderson cites checks and balances on pricing that should prevent price gouging, as well as the possibility for the participating libraries to negotiate prices with Google.
I find two fundamental flaws in her arguments. The first is that she speaks from the perspective of a participating library, that is, a library that is able to negotiate directly with Google because of its position as a provider of books to be scanned. I have no doubt that this is a comfortable position for UC and for the other participating libraries, but they are small in number, especially compared to the total number of libraries and institutions that will be affected by the Google Book Search product. And of course their position is diametrically opposed to that of the general public, who have no voice in any of this project.
It doesn't surprise me that Anderson and others in similar positions have positive feelings about the settlement: they have been able to negotiate with Google and to make their needs known. Undoubtedly they have received some concessions. I also have no doubt that Google has been gracious and helpful. For all of the rest of us, however, the entire process has been a black box. We are being asked to trust the participating libraries, and to trust their trust in Google. Even though the needs of the participating libraries, all of whom are large research libraries, are almost certainly not the same as our own.
The second flaw that I see is Anderson's focus on Google as decision-maker. My reading of the composition of the governing body (should the settlement be approved) is that it will solely represent rights holders. It will set prices and even must approve Google's products. I find it interesting that we all (and Anderson included) tend to refer to this as the "Google settlement" -- but Google is the weak party in this particular situation. Remember that Google is the defendant, and that the mere act of settling is an admission of defeat. The libraries have hitched their wagon to the loser in this case. That can't be a good position.
I must say that I am much more afraid, if that's the right word, of the power that could be wielded by the AAP/AG should the settlement be approved. Google has many kind words to say about libraries. The AAP, however, has made it clear that they consider many library uses of materials to be infringements:
We also had significant concerns with respect to the digital copies thatThe interesting upshot of this entire settlement process is that by digitizing the contents of libraries and managing those digital copies through contracts, the publishers could finally get the kind of control over library uses that they would have liked to have over the paper books held in libraries. They would like to have controls over inter-library loan, classroom use, and reserves, but they cannot exercise such controls in the analog world. Publishers have argued since the very early days of digital documents that all lending of digital documents is the making of a copy, and therefore is not allowed by copyright law.
Google was providing to libraries. Libraries might use significant portions, or all, of the contents of books on such copies for a range of purposes that publishers would not regard as permitted by the Copyright Act, including uses in classroom, “e-reserve” access to
students and faculty via institutional servers and lending digital copies to other libraries. Libraries might have raised fair use defenses in an attempt to justify such activities. We might also have been faced with sovereign immunity defenses by state institutions. In
addition, we were concerned about how the libraries could maintain the security of these digital copies. Security breaches might result in broad copying, uploading, downloading, and display of copyrighted works. (Statement of Richard Sarnoff, for the AAP board, p. 3)
As a matter of fact, right on page one of the Plaintiff's statement for the judge, among the bullet points describing the main achievements of the settlement, is this one:
Limits library uses of digital copies of Rightsholders’ works.Perhaps it has been naive of me to see this settlement as being about Google's commercialization of the world of books. It is possible that the more pertinent end result could be a renewed control of books and their uses by the publisher community. Attempts to modify copyright law to cover digital resources have failed, and the rights of the public in relation to those resources are as yet unclear. This has left a gap that the AAP/AG settlement exploits fully.
OK, now I'm afraid!