Monday, November 03, 2008

Google/AAP settlement

This Google/AAP settlement has hit my brain like a steel ball in a pinball machine, careening around and setting off bells and lights in all directions. In other words, where do I start?

Reading the FAQ (not the full 140+ page document), it seems to go like this:

Google makes a copy of a book.
Google lets people search on words in the book.
Google lets people pay to see the book, perhaps buy the book, with some money going to the rights holder.
Google manages all of this with a registry of rights.

Now, replace the word "Google" above with "Kinko's."

Next, replace the word "Google" above with "A library."

TILT! If Google is allowed to do this, shouldn't anyone be allowed to do it? Is Jeff Bezos kicking himself right now for playing by the rules? Did Google win by going ahead and doing what no one else dared to do? Can they, like Microsoft, flaunt the law because they can buy their way out of any legal pickle?

Ping! Next thought: we already have vendors of e-books who provide this service for libraries. They serve up digital, encoded versions of the books, not scans of pages. These digital books often have some very useful features, such as allowing the user to make notes, copy quotes of a certain length, create bookmarks, etc. The current Google Books offering is very feature poor. Also, because it is based on scans, there is no flowing of pages to fit the screen. The OCR is too poor to be useful to the sight-impaired. And if they sell books, what will the format be?

TILT! Will it even be legal for a publicly-funded library to provide Google books if they aren't ADA compliant?

Ping! This one I have to quote:

"Public libraries are eligible to receive one free Public Access Service license for a computer located on-site at each of their library buildings in the United States. Public libraries will also be able to purchase a subscription which would allow them to offer access on additional terminals within the library building and would eliminate the requirement of a per page printing fee. Higher education institutions will also be eligible to receive free Public Access Service licenses for on-site computers, the exact number of which will depend on the number of students enrolled."

TILT! Were any public libraries asked about this? Does anyone have an idea of what it will cost them to 1) manage this limited access and pay-per-page printing 2) obtain more licenses when demand rises? Remember when public libraries only had one machine hooked up to the Internet? Is this the free taste that leads to the Google Books habit?

Ping! The e-book vendors only provide books where they have an agreement with the publishers, thus no orphan works are included. So, will Google's niche mainly consist of providing access to orphan works? Or will the current e-book vendors be forced out of the market because Google's total base is larger, even though the product may be inferior?

Ping! We already have a licensor of rights, the Copyright Clearance Center, and it was founded with the support of the very folks (the AAP) who have now agreed to create another organization, funded initially by Google and responding only to the licensing of Google-held content.

TILT! Google books gets its own licensing service, its own storefront... can anyone compete with that? And what happens to anything that Google doesn't have?

Ping! It looks like Google will collect fees on all books that are not in the public domain. This means that users will pay to view orphan works, even though a vast number of them are actually in the public domain. Unclaimed fees will go to pay for the licensing service. Thus, users will be paying for the service itself, and will be paying to view books they should be able to access freely and for free.

Ping! We have a copyright office run by the US government. I'm beginning to wonder what that Copyright Office does, however, since we now have two non-profit organizations in the business of managing rights, plus others getting into the game, such as OCLC with its rights assessment registry, and folks like Creative Commons. Shouldn't the Copyright Office be the go-to place to find out who owns the rights to a work? Shouldn't we be scanning the documents held by the Copyright Office that tell us who has rights? (Note: the famed renewal database is actually a scan of the INDEX to the copyright renewal documents, not the full information about renewal.) Even if we had access to every copyright registration document in the Copyright Office, would we know who owns various rights? I think not. And how much of this will change with the Google opt-in system? I get the feeling that we'll maybe resolve some small percentage of rights questions, somewhere in the order of 2-5%. And it will, in the end, all be paid for by readers, or by libraries on behalf of readers.

TILT! Rights holders can opt-out of the Google Books database. If (when) Google has the monopoly on books online, opt-out will be a nifty form of censorship. Actually, censorship aimed directly at Google will be a nifty form of censorship.

GAME OVER. All your book belong to us.


Anonymous said...

Oh! The vagaries of human mind, and the paranoia of the change...

Not being very savvy on the subject, but at the fifth "ping", I do find a contradictory comment:
How could Google charge for orphan works if in the next line the author says, "even though a vast number of them are actually in the public domain"?
It is either/or, or will Google shamelessly declare works in the public domain their property?
Or will nobody ever research and sue when charged a fee for accesing a work in the public domain?

As for a Government Department, we all know what government departments do: Create and feed an endless bureaucracy and not accomplish any real productive task at all....

Erik Hetzner said...

I need to read this document more, but my initial reading is that the way that this makes Google/AAP the de facto owners of the orphan works is this:

a) Google makes available, and can charge fees for, all books in-copyright, out of print.

b) The copyright owners can sign up to receive payments for these.

c) Fees for books that are not signed up for basically go back in the pot; there is a complex way of divvying it up, the possibility of funds going to non-profits, etc., but essentially it seems to be paid back to the copyright owners who *have* signed up.

Now, I don't know what will happen. But I presume that the 260 members of the AAP will receive all the fees for their out of print books. I also presume that the vast majority of smaller publishers, even those which are still around, will *not* sign up to receive their fees. All fees from these books will then be divided up among the big publishers & the few smaller publishers which sign up.

So, the way that I read it, Google/AAP are establishing de facto ownership of orphan works; digital scans of these works will not only not enter the public domain, or something like it, but they will be used as a revenue stream for Google & other publishers.

Anonymous said...

Actually, it isn't that bad. This last stage -- "Google manages all of this with a registry of rights." -- isn't true. It is the Book Rights Registry, a new entity that is separate from Google. Although Google is funding its creation, it will be governed by a board of directors made up of authors and publishers. I think it is comparable to ASCAP/BMI for musicians.

Anonymous said...

While the analysis above is entertainingy, it is perhaps needlessly alarmist and misses many of the key points and misinterprets the structural framework contained in the settlement.

The public libraries are being given a free terminal with access to millions of books--it is hard to see this as a negative for the public library, despite the fact that they may not be able to offer printing for free or online access to the books to patrons at home.

The whole discussion of ebook providers cs. orphan works is interesting, but the terms of the settlement are that Google can only display out of print works unless they are given specific permission to display an in-print work, and publishers are unlikely to grant such permissions when they are getting far more value per use from other ebook vendors with vastly different library subscription or title sale economics per title. Thus, the universe of more valuable (in print) books will continue to be serviced by others with high quality digital editions and all the bells and whistle, rather than simple and perhaps imperfect scans.

The Book Rights Registry is controlled by the authors and the publishers, not Google, and it does have the right to enter into licenses with other parties, although to include all of the unclaimed (orphan) works, such licensing will await the passage of pending legislation from Congress.

The mandate of the CCC, which deals primarily with print usage subrights mostly "permissions," on behalf of publishers, is quite different from the mandate of the Book Rights Registry, which must deal with authors as well as publishers in the context of digital rights and commercial activities such as the sales of electronic access to individual titles in a consumer model.

The reverse censorship argument is interesting, but since Google cannot display anything that is in print without specific permission it is unlikely to get on any wide scale, it is not credible.