Please stop and read this in detail. It will illuminate some of the harmful effects of the Google settlement on authors’ intellectual property.
Google Books Settlement Prompts Questions
About Effect on Readers, Libraries, Others
Reproduced with permission from Daily Report
for Executives, 50 DER B-1 (Mar. 18, 2009).
Copyright 2009 by The Bureau of National Affairs,
Inc. (800-372-1033)
Google Inc. and the American publishers and authors
that sued it two years ago have come to an agreement on how to settle
their case over Google's scanning of entire libraries of books for
full-text searches on the Internet. However, ambiguities remain
regarding how the settlement will affect non-U.S. copyright holders,
readers, libraries, researchers, and the future of books, in general.
Many of these questions were raised at a March 13 seminar hosted by
Columbia University's law school, New York, where representatives of
the settling parties, non-party publishers and authors, attorneys, and
scholars offered their first-take analysis of the massive settlement
deal.
Google's intellectual property counsel, Alexander Macgillivray, said
that in this case Google's interest “dovetails” with the interests of
casual readers as well as academic researchers.
Other participants in panel discussions wondered whether the
settlement put too much power in the hands of Google and the registry
body that the settlement parties plan to establish. Some expressed the
wish that a public body, such as the Library of Congress, were in
charge of maintaining and administering the massive program.
In particular, observers looked askance at the unique position that
Google holds as a result of the settlement. The absence of potential
competitors worried many speakers.
Settlement of Dispute Over Scanning
The settlement's origins are in the Google Print for Publishers
program, which was initiated by Google in 2004 to enter into contracts
with publishers to digitize their copyrighted works and make them
available through Google's Web site, where users could search their
contents. Google then announced the Google Print for Libraries
program—later renamed Google Book Search—in which Google contracted
with a handful of large libraries to digitize the entire contents of
their collections—including works still under copyright protection—and
make the resulting database searchable over the Internet.
In 2005, several publishers and authors sued, initiating a class
action against Google, alleging that the scanning constituted
copyright infringement. A settlement was announced in October.
Under the terms of the settlement, Google will pay $125 million to
establish a centralized royalty collection organization and to
compensate authors of scanned books. Each book stands to earn at least
$60 for the scanning. Ongoing royalties will be paid for institutional
subscriptions to Google Book Search, for paid online access to books
through Google, for printouts made at participating libraries, and for
other uses.
According to the agreement, the parties will also establish a Book
Rights Registry under the control of authors and publishers to keep
track of the use of registered works and for centralized collection of
royalties.
The settlement proposal offers authors who do not accede to the
agreement to opt out.
Will Authors Benefit?
Jan F. Constantine, general counsel for the Authors Guild, one of the
settlement parties, hailed the settlement as an “absolutely wonderful
deal for authors.” She said that she saw “no downside” for copyright
holders or end users.
Eugene Linden, author of several books, including The Winds of
Change: Climate, Weather, and the Destruction of Civilizations, said
it was an irony that, by effectively allowing anyone to self-publish
and distribute works for free, digitization will make it difficult for
authors like him to make a living from their writings.
According to Linden, past barriers to print publishing have allowed
authors and publishers to charge sufficiently high prices for use of
their works to produce enough of a royalty income for writers to live
on. With a lack of barriers for entry to the publishing business in a
digital environment, traditional print publishers and authors are
forced to cut prices. As a result, writing-based businesses—such as
journals, magazines, and newspapers—do not generate enough revenue to
support their content providers.
“There's a huge gap between writers' importance to society and
remuneration,” however, Linden said. “Writers have produced some of
the most disruptive events,” such as Charles Darwin's On the Origin of
Species and Rachel Carson's Silent Spring.
“As an author, I'm happy that there's now a facility to connect out-
of-print books to those that want to find them,” he said. However, the
result is “parasitic” and “cannibalistic,” because of the diminishing
rate of return to authors. “Yes, the digital world has tremendous
possibilties. … On the other hand, writers are leaving by the
thousands, because the digital world has put out of business their
newspapers and magazines.”
Congressional Prerogatives
Marybeth Peters, the register of copyrights, led the list of
questioners. Peters said that Google's settlement with the Authors
Guild relies on authors to come forward and claim their rights in
order for them to benefit from the deal. She compared this system to
federal registration of copyrighted works. Like copyright
registration, the settlement agreement seeks to encourage those
holding copyright interests to come forward and identify themselves.
However, Peters said, even the Copyright Act, which also seeks to
create significant incentives for copyright holders to come forward in
the form of registration, has had very limited success.
“I can tell you that there are many, many works that are not
registered. … An awful lot of the works are going be in the public
domain [or] treated as public domain works,” she said. If the
copyright registration infrastructure has such limited success, Peters
said, she doubted that the parallel registration system being created
by the settlement would be any more successful in prompting a
significant proportion of copyright owners to come forward.
Peters pointed to commentary that the settlement seemed to be a kind
of legislation, stepping on congressional prerogatives. Internet
archivist Brewster Kahle, for example, said that the settlement
effectively “creates a system going forward that … creates a new
Copyright Office, creates new copyright laws … [and] all around a
single monopoly for collective access to the books of humankind.”
“The legislative process is what the Constitution had in mind with
respect to setting copyright policy,” Peters said. She warned that it
remains to be seen how Congress will react to the parties'
settlement.
Peters stressed that many affected parties—foreign copyright holders,
libraries, authors not included in the parties to the litigation, the
public—were not party to the negotiations.
“I'm not opposed to the settlement in principle,” she said. “The
question to me is the scope and the forward-looking aspects that
didn't really benefit from a broader public outlook, although many
people will be bound by this.”
Concerns Over Monopoly Power
Robert C. Darnton, director of the Harvard University library, labeled
the Google database as “the new library of Alexandria in digital
form.” However, he expressed concern that no one will be able to
compete with Google. Even if another entity has the resources to enter
into the same kind of project that Google has embarked upon, he said,
the terms of the settlement agreement include a “most favored-nation
clause,” which guarantees that the settlement parties cannot offer any
other party a deal that is better than the one that Google's getting.
This puts Google in the position of a monopoly at a time when
libraries are already facing the high costs of subscription databases.
This is a “situation in which Google can ratchet up prices” in a
manner that is “going to ruin libraries.” Darnton expressed a plea:
“Please, Google, find some mechanism that will preserve us from your
abuse of monopolistic power.”
Treatment of ‘Orphan Works.'
James Grimmelmann, a professor at New York Law School, was among
several who expressed concern about the settlement's impact on “orphan
works,” whose authors do not come forward to claim rights.
Under the settlement, works whose authors are known or who come
forward in order to claim their rights will fall under the protection
of the registry. However, works whose authors remain unknown will be
subject to the exclusive authority of Google.
This “orphan works issue is absolutely central to the problems of the
settlement,” Grimmelmann said. Indeed, he said, these works should not
be called “orphans,” but rather “zombies”: “a shambling army under the
sole control of Google.”
Grimmelmann also warned about the concentration of power being
created, noting antitrust and monopoly power concerns. In addition, he
said that the settlement makes Google the “single dominant cultural
source” with the “power … to shape culture” by deciding what books
will be included in its database, and how to rank them in search
results.
Furthermore, he said that Google will have significant information
about users as a result of their searches and their views of data
through Google. This implicates privacy concerns. Indeed, the
settlement requires Google to monitor reader activities and report
them to the registry for royalty purposes.
Consumer rights are also implicated, Grimmelmann said. What recourse
would a reader have if a particular book was badly scanned, he asked.
He also said that the settlement constitutes a “de facto change” in
fair use rights.
Grimmelmann suggested that the Federal Trade Commission might have to
step in to ensure that Google does not abuse its market power.
“If this is a reasonable deal, it should be open to all,” he said.
“If it's not modified now, it's going to shape the digital world in
the near future and maybe the far future,” Darnton said. A key defect
in the settlement was the absence of public representation in the
administration of the deal. The public “needs to be protected against
the potential of this service—wonderful as it is—being priced out of
their range.”
There is a provision in the settlement agreement that would allow the
registry to distribute to participating rights holders royalties
collected for orphan works. In other words, members of the registry
would be taking the royalties collected on behalf of authors who had
not joined the registry.
Darnton objected to this claiming of orphan works royalties by the
authors and publishers who did not hold copyright interest in the
works being used. He said such funds should be used for the public
benefit.
Carol A. Mandel, dean of libraries at New York University, was one of
several who expressed the wish that Congress would take the settlement
as an opportunity to finally enact legislation on orphan works.
“Before this morning, I was most concerned with the power of the
registry,” she said. After hearing much of the discussion, “I can't
emphasize enough the importance of orphan works legislation.”
Google's Macgillivray expressed support for congressional action on
orphan works and he encouraged those interested in the issues to lobby
for it.
Registry Concerns
Regarding the registry, Tracey L. Armstrong, head of the Copyright
Clearance Center, which was established by copyright holders in 1977
to administer rights collectively, was curious as to why the CCC
wasn't chosen to administer rights under the settlement.
“The registry as it's framed out in the settlement agreement is
parallel with CCC in some ways,” she said. “One of the questions that
came up was why isn't CCC the registry? I really can't answer that
directly [because] I wasn't at the table.”
Victor S. Perlman of the American Society of Media Photographers also
expressed disappointment that photographic works were not encompassed
by the settlement.
“There's nothing inherent about visual materials that suggest that
they should not have been included,” Perlman said.
By Anandashankar Mazumdar
Copyright © 2009, The Bureau of National Affairs, Inc.
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