Revised Google Books Settlement Tackles Foreign Titles, Orphans

November 18, 2009

Shortly before a midnight deadline on November 13, Google, the Authors Guild, and the Association of American Publishers filed a revised version of their proposed settlement of lawsuits challenging Google’s Book Search project. The original deal, reached in October 2008, drew criticism over antitrust concerns and treatment of orphan works and foreign publications, and an unfavorable September 18 filing by the Justice Department prompted the parties to modify the agreement.

In response to concerns from foreign rightsholders, the amended settlement (PDF file) limits the agreement to books that were either registered with the U.S. Copyright Office or published in the United Kingdom, Australia, or Canada. It also addresses the treatment of orphan works, directing a portion of the revenue generated from unclaimed works to be used to locate rightsholders and calling for the appointment of an independent fiduciary who would be responsible for decisions regarding orphan works. In addition, it allows for Creative Commons licensing, permitting rightsholders to let their works be distributed at no cost.

The amended agreement permits Google to increase the number of terminals that can be used at public libraries to access the database of books; previously, only one terminal per library building was allowed. On her blog, librarian Karen Coyle lamented that the revision offers “no information on whether or how public libraries could subscribe in a way that would allow them to fully serve their communities.”

In a statement, the parties noted that the changes, made after a reviewing of submissions filed with the court overseeing the deal, including the one from the Justice Department, “were developed to address many of these concerns, while preserving the core benefits of the agreement.”

The removal of foreign books is the most significant change to the agreement: The Wall Street Journal estimated November 16 that the elimination of millions of foreign titles would reduce the number of works covered by the settlement by at least half. “We’re disappointed that we won’t be able to provide access to as many books from as many countries through the settlement as a result of our modifications,” said Google Books Engineering Director Dan Clancy on Google’s Public Policy Blog, “but we look forward to continuing to work with rightsholders from around the world to fulfill our longstanding mission of increasing access to all the world’s books.”

Critics maintained that the revisions failed to address antitrust and privacy concerns. Peter Brantley, co-chair of the Open Book Alliance, said, “None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest,” adding that 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.”

Brantley added November 18 that “the deal lacks basic safeguards consumers would expect from any public library,” and that the “Google’s one-stop book shop [model] is a for-profit play by a profit-maximizing company.” He asked rhetorically, “Do we really want the card catalog of the future running advertising?”

The revised settlement “fails to address the concerns of several writers’ organizations and many American writers, and allows Google to get away with violating writers’ constitutionally protected rights,” said National Writers’ Union President Larry Goldbetter. “While the new proposal might appear to answer some objections, it still offers American writers a pittance for their already-scanned books, still requires writers to ‘opt out’ of the Google Books program, and still interferes with author-publisher contractual relationships.”

A proposed timetable set out in the settlement filing sets a January 28, 2010, deadline for filing of objections and amicus briefs. The deadline for the Justice Department’s response would be February 4, and the final fairness hearing would take place February 18.