Sunday, February 21, 2010

Trust and the Settlement

In the week leading up to the hearing (Feb. 18, 2010) in New York in Judge Chin's court on the proposed settlement between the AAP/AG and Google, many parties weighed in with formal documents as well as informal ones. While few if any of these produced new information for the judge, they do reveal the different points of view of the parties involved.

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 that
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)
The 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.

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!


Peter said...

Karen, I have mixed reactions to your two points. On the first one, that participating libraries have some significant ability to negotiate with Google, is wrong. The scope of what can (and cannot) be negotiated with Google is set by the participating library agreements included as part of the settlement. It is also shaped by the "Collective Terms" negotiated by Michigan with Google and attached to Michigan's amended agreement. If you look at these, you will see that there is not much room for negotiation.

How Michigan negotiated these terms is as much a "black box" to me as the whole process is to you. The key question one needs to ask, however, is whether there are things that are problematic in those terms. The one that gives me the most pause is the possibility of predatory pricing of the institutional subscription. Michigan's solution was to allow partner libraries to ask for a pricing review. While Michigan (and I suspect Stanford and California) may not need to ask for this because they are getting the subscription for free, the other partner libraries won't be so lucky. If you look at the discount for partners (1 FTE for every 50 books covered by the agreement), you will see that other partner libraries will have to digitize millions of books to have any sort of substantial discount since the scope of titles covered by the settlement has narrowed so much. In short, the partner libraries (other than Michigan, California, and Stanford) are in the same boat as everyone else.

The only solution to the pricing problem that I can see is what Ivy recommends: namely, that if the price is too high or the product does not have the privacy protections we want, then libraries should not subscribe. It is going to be very hard to do this, especially if the "Big Three" are getting the database for free, but it is only collective action on our part that can lead to effective negotiations over price and other features. So we are all in this together, and trying to draw distinctions between partner libraries and other libraries isn't helpful.

As for your comments about the AG and publishers, I think you are right on target. But to my mind, the trade-off that the settlement represents is a reasonable one. Prior to the settlement agreement, partner libraries would have been able to make "fair use" of the scans provided by Google. As we know, however, the scope of what constitutes "fair use" is extremely uncertain (and may get narrower depending on the fate of the Georgia lawsuit). With the settlement agreement, libraries have lost the ability to make fair use of the scans that are returned to them; they are basically worthless. But 20% of each book will be available for free on Google, and the full-text (and the right to use it in teaching, etc.) will be available through the institutional subscription.

In sum, I am going to side with Ivy on this one. The settlement is far from perfect, but it is better for libraries than life without the settlement. It is certainly better than the arguments that are being advanced by the front men for anti-Google corporate interests, who are speaking out against the settlement in ways inimical to the interests of libraries. (I am thinking here of the Open Book Alliance, which has started arguing that the initial scanning to create an index was an infringement, a position no library accepts, and which has argued that the Google settlement must be an "opt-in" process, which will ensure that we will never have full-text access to unclaimed works.)

I think that you are right to worry the settlement is going to create rich organizations inimical to library interests, but if all libraries stick together, and with Google's support, more good than harm can result.

Karen Coyle said...

Peter, as someone from an institution that was involved in some way in the settlement negotiations, I think you have proven my point: the world looks different from that position.

I agree that there is not much room for negotiation with Google -- my point was about the level of comfort with the situation. As a matter of fact, I expect that there will be LESS room for negotiation with Google should the settlement be approved.

Ivy Anderson said...

Karen - First of all, thanks for commenting on my article. I would not say that being a participating library is a particularly comfortable place to be these days, especially at UC! But I can assure you that the pricing arbitration provisions that Michigan and others have insisted on were not negotiated on the basis of narrow self-interest. It's notable that one of the main supporters at the hearing argued on behalf of non-participating libraries at have-not institutions that have very little access to the collections that the big research libraries hold. The institutional subscription holds out great potential for less advantaged institutions, far more so than for the contributors. If the Settlement doesn't succeed, the most negative impacts will be on those libraries.

I agree that the publishers are far more inimical to library interests than Google, and am glad you've pointed out that Google is only one party here. As I tried to say in my post, the Settlement is far from perfect. It imposes onerous restrictions that we could happily do without. But it's also worth pointing out that while libraries have been digitizing book content for a good while before mass digitization came along, we haven't been digitizing a lot of in-copyright material and testing the bounds of fair use with it. In fact we've been pretty conservative. The institutional subscription, if it comes to pass, will be a lot like all of the other licenses that libraries currently sign, offering more access to more libraries than fair use would typically allow (participating libraries would be unlikely to make their copies available to another institution for ereserves, for example). I do think that if the Settlement is approved, there will be a push for orphan works legislation by Google's competitors, which is our best hope for a more rational approach to broader rights for those works.

In the meantime I wouldn't join Peter in calling our copies worthless; we're able to build the same kinds of services with them that Google has been building absent the settlement (full-text indexing, full use of public domain works, etc.), as well as some use for Section 108 replacement. Certainly there are some fair uses that participating libraries won't be able to make. At least, not with those particular copies (although my recollection is that there is some fair use language in there somewhere). It's too bad that we don't live in a perfect world.

It will be interesting to see what happens next.