Category Archives: Orphan works

The Google Book Settlement hearing is over, and now we wait

The Google Book Settlement fairness hearing was held yesterday (February 18th). Here are some recaps of what happened:

Now it’s up to Judge Denny Chin to decide the fate of the Google Book Settlement.

For background on the GBS controversy, see my previous posts on the subject, which contain lots of links and other information.

That’s enough blogging for today– spring has come very early to Seattle, so I’m going outside to play in the sunshine.

Update, 2/20/10:  Today James Grimmelmann posted his long, detailed, and very interesting first-person report on the fairness hearing, in which he summarizes the arguments of each speaker and the questions Judge Chin asked in response.  Grimmelmann notes, “Yesterday’s fairness hearing was fascinating. Very little happened to substantively change where the case is going, but as a snapshot of the players and their positions, it was very revealing.”

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Google Book Deal 2.0

Late last night the revised Google Book settlement was filed with the court.

So what’s changed? From the New York Times:

The revisions to the settlement primarily address the handling of so-called orphan works, the millions of books whose rights holders are unknown or cannot be found. The changes call for the appointment of an independent fiduciary, or trustee, who will be solely responsible for decisions regarding orphan works.

The trustee, with Congressional approval, can grant licenses to other companies who also want to sell these books, and will oversee the pool of unclaimed funds that they generate. If the money goes unclaimed for 10 years, according to the revised settlement, it will go to philanthropy and to an effort to locate rights holders. In the original settlement, unclaimed funds reverted to known rights holders after five years.

The changes also restrict the Google catalog to books published in the United States, Britain, Australia or Canada. That move is intended to resolve objections from the French and German governments, which complained that the settlement did not abide by copyright law in those countries.

The revised settlement could make it easier for other companies to compete with Google in offering their own digitized versions of older library books because it drops a provision that was widely interpreted as ensuring that no other company could get a better deal with authors and publishers than the one Google had struck.

Google’s blog post about the revised settlement has links to their summary of the changes and FAQ.

James Grimmelman has a detailed analysis of the revised settlement and notes: “My instant reaction is that it makes a number of meaningful, if modest, improvements, but leaves unaddressed the central issue that led me to worry about the settlement in the first place.”

The Open Book Alliance is, of course, unhappy with the revised settlement:

Open Book Alliance co-chair Peter Brantley said, “Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand; fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners. None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest. By performing surgical nip and tuck, Google, the AAP, and the AG are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution; usurp Congress’s role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process.”

Resource Shelf has an excellent  link roundup and press review here.

Judge Denny Chin will soon announce the timeline for the notice period, objection hearing, and final fairness hearing.

I’m sure the debate will rage across the blogosphere in the days and weeks to come.

Update, 11/15: James Grimmelman has posted the proposed GBS schedule on his Laboratorium blog:

* Notice begins: Monday, December 14, 2009.

* Opt-out/objection/amicus deadline: Thursday, January 28, 2010 (45 days later).

* DOJ files its response: Thursday, February 4, 2010 (7 days later).

* Plaintiffs move for final approval: Thursday, February 11, 2010 (7 days later).

* Final fairness hearing: Thursday, February 18, 2010 (7 days later).

Link salad

Sorry for the lack of blogging, but I’ve been unusually busy of late. Here’s a round-up of some of the links I’ve collected over the past week or two.

Sergey Brin’s op-ed in the New York Times defending the Google Books settlement, “A Library to Last Forever”:

Today, if you want to access a typical out-of-print book, you have only one choice — fly to one of a handful of leading libraries in the country and hope to find it in the stacks.

I laughed out loud when I read this. As far as I know, all libraries have online catalogues so you can check their holdings remotely, and many have interlibrary loan programs. And has this man never heard of a used bookstore? You can even search for millions of out-of-print books on sites like Bookfinder, buy them online and have them mailed to your home.

Here’s Pamela Samuelson’s response in The Huffington Post, “Google Books in Not a Library.”

And Chris Thompson’s response in Slate, “Sergey Brin Blows Smoke Up Your Ass.”

And the Open Book Alliance’s response.

Chris Thompson’s East Bay Express article “The Case Against Google Books,” about Peter Brantley, Pamela Samuelson, and Geoff Nunberg and their opposition to the Google Books settlement.

Lewis Hyde’s New York Times Book Review essay on orphan works: “There are millions of them out there, and they are gumming up the world of publishing…. [When] Carnegie Mellon University tried to digitize a collection of out-of-print books, one of every five turned out to be orphaned. When Cornell tried to post a collection of agricultural monographs online, half were orphans. The United States Holocaust Museum owns millions of pages of archival documents that it can neither publish nor digitize.”

Sam Roberts’ New York Times article about the Leon Levy Foundation’s grants to institutions to “preserve and digitize their archival collections and to make them available online to scholars and to the public.” This could uncover many historical treasures that have been locked away in uncatalogued archives.

Michael Ruane’s Washington Post article, “WWII GI Returns Books Taken from Germany Six Decades Ago,” with “anti-Nazi librarians hiding their books.”

Motoko Rich’s New York Times article about library ebooks, in which “some publishers worry that the convenience of borrowing books electronically could ultimately cut into sales of print editions.”

Survival of the Book’s post on the Entertainment Weekly Q&A with Dacre Stoker about the Dracula sequel: “We grew up thinking, Isn’t it too bad that the copyright was lost in the 1930s?… When [the vampire craze] was just beginning to pick up, we said, ‘You know what? We better get this thing done.'”

From Letters of Note, a 1777 Revolutionary War “masked letter.”

And yes, I know I missed Banned Books Week, but you can still read my post from last year, “Girls lean back everywhere….”

Justice Department recommends the Google Books settlement be rejected and renegotiated

Late last night the U.S. Department of Justice filed a 32-page “statement of interest” regarding the proposed Google Books settlement.  In short, the DOJ recommends that:

This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws.

This Resource Shelf post has a long link roundup of news reports and reactions. Here’s today’s New York Times article about it.

Law Professor James Grimmelmann has posted a detailed summary and explanation of the DOJ filing in his Laboratorium blog, which begins:

This is a really, really good brief. The Department of Justice appreciates both the potential and the dangers of the settlement. They’re clearly trying to lay the groundwork for a constructive way forward, while protecting copyright owners and competition.

The DoJ, speaking on behalf of the United States, has two broad areas of concern: fairness to copyright owner class members and protecting competition. It also strongly notes the public benefits from making out-of-print works more available, from creating accessible versions for the disabled, and from expanding distribution options for books. Their bottom line is that the settlement as it now stands is untenable, but that with modifications, it could be much better. It indicates that the parties are trying to negotiate (with each other and with the DoJ, it would appear) some of those changes, and the DoJ gives the court suggestions for how it ought to encourage the parties along….

Grimmelmann’s blog is a great source for detailed information about the Google Books controversy, with lots of useful links and interesting analysis.

The fairness hearing on the settlement is on October 7th. The court has received over 400 written filings in the case, and The Public Index has a list and links to them. These include objections, amicus briefs, letters of support, and letters raising concerns, from corporations, organizations, libraries, universities, publishers, individual authors, and even countries.

Here are a few other links I’ve been collecting over the past few weeks:

Here are links to my previous blog posts about the Google Books settlement.

“…those lost books of the last century can be brought back to life and made searchable, discoverable, and citable…”

Thanks to DigitalKoans for calling attention to an interesting essay by Tim Barton, president of Oxford University Press, titled “Saving Texts From Oblivion: Oxford U. Press on the Google Book Settlement.” Here’s an excerpt:

In describing books, the Scottish-American classicist Gilbert Arthur Highet once wrote, “These are not lumps of lifeless paper, but minds alive on the shelves.” In a world in which students consult not shelves but keyboards, too many of those lively minds remain out of sight, exiled to those shelves, where, every year, there is a virtual conflagration not unlike the fire at the ancient library at Alexandria, as last copies of precious books crumble slowly to dust, or are damaged, stolen, or lost.

What once seemed at least debatable has now become irrefutable: If it’s not online, it’s invisible. While increasing numbers of long-out-of-date, public-domain books are now fully and freely available to anyone with a browser, the vast majority of the scholarship published in book form over the last 80 years is today largely overlooked by students, who limit their research to what can be discovered on the Internet… [T]he vast majority of the scholarship published since 1923 (the date before which titles are in the public domain in the United States) is now effectively out of reach to the modern student….

It has taken many months for the import of the [Google Book] settlement to become clear. It is exceedingly complex, and its design — the result of two years of negotiations, including not just the parties but libraries as well — is, not surprisingly, imperfect. It can and should be improved. But after long months of grappling with it, what has become clear to us is that it is a remarkable and remarkably ambitious achievement.

It provides a means whereby those lost books of the last century can be brought back to life and made searchable, discoverable, and citable. That aim aligns seamlessly with the aims of a university press. It is good for readers, authors, and publishers — and, yes, for Google. If it succeeds, readers will gain access to an unprecedented amount of previously lost material, publishers will get to disseminate their work — and earn a return from their past investments — and authors will find new readers (and royalties). If it fails, the majority of lost books will be unlikely ever to see the light of day, which would constitute an enormous setback for scholarly communication and education.

The settlement is a step forward in solving the problem of “orphan works,” titles that are in copyright but whose copyright holders are elusive, meaning that no rightsholder can be found to grant permission for a title’s use. For such books, a professor cannot include a chapter in a course pack for students; a publisher cannot include an excerpt in an anthology; and no one can offer a print or an electronic copy for sale. Making those books available again is a clear public good. Google’s having exclusive rights to use them, as enshrined in the current settlement, however, is not….

First and foremost, the settlement is about discovery: a basic restoration of books to our literary landscape that enables readers to find what they once would have missed…  Many publishers will not have the mission nor the means to overcome the formidable obstacles involved in giving their print backlists an online life. But whether the lost scholarship is made available through the settlement or also through the activities of publishers, the means may be different, but the end is the same. The settlement gets authors, readers, and publishers farther and faster than if we had been left solely to our own devices….

To be clear, as noted above, the settlement is certainly not perfect and the solution to dealing with orphan works is particularly problematic: Google should not have the exclusive ability to exploit those works, and further refinement is needed to ensure that the Book Rights Registry can license those titles to others besides Google. Yet it also seems more likely that orphan-works legislation will be forthcoming if the settlement goes ahead. And it is important that all of the participants to the settlement, and especially Google, should now publicly commit themselves to supporting the needed new legislation in meaningful ways. We may also find the orphan-works issue diminishing in scale over time, as rightsholders come forward, should the program be successful….

We cannot now predict all of the places where the settlement will take us, which should make us understandably cautious. But even as we debate the important issues surrounding it, we must not shirk our responsibility to take forward-thinking, tangible steps now — today — by conjuring perilous futures and retreating to the safety of inaction and paralysis….

So we at Oxford University Press support the settlement, even as we recognize its imperfections and want it made better. As Voltaire said, “Le mieux est l’ennemi du bien,” the perfect is the enemy of the good. Let us not waste an opportunity to create so much good. Let us work together to solve the imperfections of the settlement. Let us work together to give students, scholars, and readers access to the written wisdom of previous generations. Let us keep those minds alive.

The full essay appears on the website of the Chronicle of Higher Education.

The controversy over Google Book Search

In the months since the Google Book Search settlement was announced, there has been a lot of commentary, criticism, and debate about it.  If you’d like to read more about the controversy, below is a collection of links to some interesting articles, essays, and blog posts.  (Here’s my original October 28, 2008 post on the subject right after the settlement was announced. My initial reaction was very positive, but I do have some concerns and opinions which I’ll save for a future post. )

New York Times articles:

April 4, 2009 article, “Google’s plan for out-of-print books is challenged.”

February 1, 2009 article, “Some fear Google’s power in digital books.”

January 4, 2009 article, “Google hopes to open a trove of little-seen books.”

October 28, 2008 article, “Google settles suit over book-scanning.”

Commentary and criticism:

Walt Crawford’s “Perspective: The Google Books Settlement,” a 30-page analysis and summary of commentary by others in the March 2009 Cites & Insights newsletter.

Robert Darnton’s  “Google & the Future of Books” in the New York Review of Books (February 12, 2009), and letters in response to Darnton’s essay.

Jonathan Grimmelmann’s “How to Fix the Google Book Search Settlement” in the April 2009 Journal of Internet Law.

Electronic Frontier Foundation’s “Reader’s Guide to the Google Book Search Settlement.”

Jonathan Band’s “A Guide for the Perplexed: Libraries and the Google Library Project Settlement” (November 2008).

Charlie Petit’s commentary on his Scrivner’s Error blog.

In March 2009 a conference was held at Columbia Law School called “The Google Books Settlement: What Will it Mean for the Long Term?” The blog Open Access News has a summary of blog comments about the conference. More on the conference from the LibraryLaw Blog (part 1 and part 2).

If you have any link suggestions or opinions you’d like to share, please do so in the comments to this post.

Great news about Google Book Search

Like everyone else, I use Google dozens of times a day. Their web search engine is still the best I’ve found, but Google also has a number of more specialized search functions that I like and use regularly. By far my favorite is Google Book Search, which is not one of the main functions listed on Google’s home page, but it will appear if you click the “more” link.

Google Book Search enables you to search the full texts of all of the books stored in its database, which is made up of books scanned from the collections of cooperating libraries (including Harvard University, Oxford University, and the New York Public Library, to name a few) and digital book files submitted by publishers. For books in the public domain (published in the U.S. before 1923), you can read as much of the text as you like online, download a PDF file of the entire book, and print as many pages as you want. For books still under copyright, if the author or publisher has given permission, you may be able to view a limited number of pages (though you cannot print or copy any of the text), but most books are restricted to only a few lines or no preview at all. Google displays detailed information about each book, and you can see a list of libraries that have it or buy a copy from an online bookstore.

I love Google Book Search because it helps me discover extremely useful and interesting books of all kinds– old and new, in-print and out-of-print, primary and secondary sources, and valuable sources of information long neglected or forgotten. I love having instant access to complete works in the public domain that are out of print and not available through my local libraries. I love being able to search the texts of millions of books simultaneously for words or phrases– names, places, dates, subjects, titles, historical events, etc.

Google Book Search has always been controversial because it scans books still under copyright without obtaining permission from the authors and publishers, and Google has been sued by the Authors Guild and the Association of American Publishers over it. The great news is, according to Publishers Weekly, the lawsuits have been settled, and everyone wins– millions of books under copyright will be searchable online, there will be a way to purchase full online access to many copyrighted works, the full texts of out-of-print books will be viewable for free on library computer terminals, authors and publishers will control whether or not their works are included and share in the revenue generated through online access to their works, a nonprofit Book Rights Registry will be set up, etc. As both a researcher and the wife of an author, I am thrilled.

Here are excerpts from the AAP statement detailing the settlement:

The Authors Guild, the Association of American Publishers, and Google today announced a groundbreaking settlement agreement on behalf of a broad class of authors and publishers worldwide that would expand online access to millions of in-copyright books and other written materials in the U.S. from the collections of a number of major U.S. libraries participating in Google Book Search….

The agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form, by significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the Web. The agreement acknowledges the rights and interests of copyright owners, provides an efficient means for them to control how their intellectual property is accessed online and enables them to receive compensation for online access to their works.

If approved by the court, the agreement would provide:

  • More Access to Out-of-Print Books — Generating greater exposure for millions of in-copyright works, including hard-to-find out-of-print books, by enabling readers in the U.S. to search these works and preview them online;
  • Additional Ways to Purchase Copyrighted Books — Building off publishers’ and authors’ current efforts and further expanding the electronic market for copyrighted books in the U.S., by offering users the ability to purchase online access to many in-copyright books;
  • Institutional Subscriptions to Millions of Books Online — Offering a means for U.S. colleges, universities and other organizations to obtain subscriptions for online access to collections from some of the world’s most renowned libraries;
  • Free Access From U.S. Libraries — Providing free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries; and
  • Compensation to Authors and Publishers and Control Over Access to Their Works — Distributing payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry that will also locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.

Under the agreement, Google will make payments totaling $125 million. The money will be used to establish the Book Rights Registry, to resolve existing claims by authors and publishers and to cover legal fees. The settlement agreement resolves… lawsuits [that] challenged Google’s plan to digitize, search and show snippets of in-copyright books and to share digital copies with libraries without the explicit permission of the copyright owner.

Holders worldwide of U.S. copyrights can register their works with the Book Rights Registry and receive compensation from institutional subscriptions, book sales, ad revenues and other possible revenue models, as well as a cash payment if their works have already been digitized.

Libraries at the Universities of California, Michigan, Wisconsin, and Stanford have provided input into the settlement and expect to participate in the project, including by making their collections available. Along with a number of other U.S. libraries that currently work with Google, their significant efforts to preserve, maintain and provide access to books have played a critical role in achieving this agreement and, through their anticipated participation, they are furthering such efforts while making books even more accessible to students, researchers and readers in the U.S. It is expected that additional libraries in the U.S. will participate in this project in the future….

“It’s hard work writing a book, and even harder work getting paid for it,” said Roy Blount Jr., President of the Authors Guild. “As a reader and researcher, I’ll be delighted to stop by my local library to browse the stacks of some of the world’s great libraries. As an author, well, we appreciate payment when people use our work. This deal makes good sense.”

“This historic settlement is a win for everyone,” said Richard Sarnoff, Chairman of the Association of American Publishers. “From our perspective, the agreement creates an innovative framework for the use of copyrighted material in a rapidly digitizing world, serves readers by enabling broader access to a huge trove of hard-to-find books, and benefits the publishing community by establishing an attractive commercial model that offers both control and choice to the rightsholder.”

“Google’s mission is to organize the world’s information and make it universally accessible and useful. Today, together with the authors, publishers, and libraries, we have been able to make a great leap in this endeavor,” said Sergey Brin, co-founder & president of technology at Google. “While this agreement is a real win-win for all of us, the real victors are all the readers. The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips.”

Updates:

Here is Google’s blog post about the settlement.

Here the future changes to Google Book Search resulting from the agreement are explained.