GBS 2.0: The New Google Books (Proposed) Settlement

by Kenneth Crews on November 17, 2009

One of the basic indicators of successful negotiations is that each party leaves equally satisfied and dissatisfied.  No one gets everything.  Trouble brews, however, when the deal leaves so much dissatisfaction that the good news is overwhelmed.  Such may be the case with the revised Google Books settlement, offered for our consideration at midnight on November 13 ("GBS 2.0").  It is a neat deal, but the negatives are inescapable.  It is hard to build an exciting new future on such ambivalence.

The basics: Google and groups of authors and publishers announced in October 2008 a settlement ("GBS 1.0") of their copyright litigation involving the scanning of books and delivery of snippets.  The proposal encountered a wide range of concerns, including sharp challenges from the U.S. Copyright Office.  Severe criticism from the U.S. Department of Justice, particularly on antitrust grounds, sent the parties back to negotiations.  Despite numerous problems with the settlement, many libraries and researchers were frankly excited about the ability to access online tens of millions of books from around the world.  Many rightsholders had deep concerns, but others supported the new opportunities for publishing and revenue.  Critics and boosters were easy to find.  Still, the settlement needed repairs.

On November 13 the parties delivered to the court, right on schedule, the revised agreement.  The differences between GBS 1.0 and GBS 2.0 are outlined now in many places.  Some concerns were punted.  Agreement 2.0 unfortunately does nothing meaningful about privacy rights of readers.  Google will still know who you are and what you are reading.  Other changes were easily within reach.  For example in 1.0, any revenues from unclaimed books (orphan works) would eventually be distributed to the claimants of all other books.  The money now would largely go to charitable causes.  Some clunky mechanics in the agreement, but a welcome change.

Money aside, Google will still hold an effective monopoly over scanning and marketing of orphan books.  GBS 2.0 provides for appointment of an “Unclaimed Works Fiduciary” who will have some authority to supervise the licensing of orphans.  The UWF plan looks good on paper, but James Grimmelmann has scrutinized the language and discerned that the fiduciary’s powers are either illusory (my word) or merely a continuation of the exclusive control of orphans that was part of GBS 1.0 and led to many of the antitrust challenges.

The most obvious change in the settlement, however, is its scope.  GBS 1.0 encompassed books from throughout the world.  Libraries and researchers were eagerly anticipating access to ten, twenty, even thirty million books in all languages and from all countries as part of the “Institutional Subscription Database.”  It would surely be costly, but it would also be a treasure trove.  That anticipation quieted many concerns from libraries.  In fact, it no doubt motivated many libraries to become a Google partner and to ship their collections for scanning.

GBS 2.0 is a double whammy for libraries.  First, the ISD’s scope is slashed.  No longer “worldwide,” the settlement is now only about books registered with the U.S. Copyright Office (which will be dominantly U.S. books), and books originating from the United Kingdom, Canada, and Australia.  Gone are all other books from Europe, Asia, Africa, South America, and other regions.  Because the settlement is now tightly limited, so will be the ISD.  The big and (probably) expensive database is no longer so exciting.  Many of the books under GSB 2.0 are likely already available to many libraries.

The second whammy is legal.  Because the settlement does not cover all books, liabilities surrounding some large portion of the books already shipped by libraries and scanned by Google are not released.  Copyright owners from France, Argentina, New Zealand, and China retain the right to commence yet another lawsuit against Google, conceivably drawing libraries into the melee.  Why the libraries?  Rightsholders could claim that libraries are “contributory infringers” by making the books available.  Moreover, many libraries and Hathi Trust, continue to hold book scans received from Google that are now outside the settlement.

Is such a lawsuit against Google or libraries likely?  The likelihood is probably minuscule or none.  Nevertheless, the narrower settlement leaves concerns on the table and leaves libraries to evaluate their activities and to make a legal decision.  Time to check in with counsel.  More thoughts to be posted soon.

Kenneth Crews
November 17, 2009

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